In Kentucky, the Commonwealth (that’s what they call themselves, and who are we to dispute it?) is liable when it has notice of a defect in a highway. The defect in this case was a hole in the pavement, located at the curb end of a parking space. The Department of Highways people inspected that stretch of urban street regularly, but always by driving by. That area of town was teeming with commerce, so the parking spaces were always full and the hole went unseen.

When Mary Maiden fell by stepping in the hole, she sued. The Board of Claims, Kentucky’s tribunal for hearing claims against the Commonwealth, figured that the DOH employees had done all they could do to inspect the street. Thus, it found that DOH wasn’t on notice of the hole.

But the Court of Appeals reversed. In a two-to-one decision, it decided that a drive-by inspection that couldn’t see the whole street wasn’t a reasonable inspection. The case is interesting to us because the Court contrasted this situation to the decision in Commonwealth v. Callebs, a case we’ll look at tomorrow. There, when a tree in the right-of-way fell on a driver, the court found that requiring a “walkaround” inspection was unreasonable.

But Ms. Maiden’s Court said that Callebswas different: it placed an unreasonable demand on the DOH to require it to inspect every tree in a rural setting. Besides, to have seen the defect in the tree that fell on Mr. Callebs, the DOH workers would have to gone behind the tree onto private property in order to see the defect.

This case — and the one we’ll consider tomorrow — together illustrate the “touchy-feely” nature of some determinations of what is and is not “reasonable.”

Unfortunately for the Commonwealth, not every hole in the street is quite this obvious.

The Kentucky Department of Highways had agreed to maintain the street as a part of the state road system. The block in which the accident occurred is in a busy commercial area with diagonal parking on both sides of the street which is usually full during business hours. The hole was about 24 inches long, 9 inches wide and 3 inches deep and was located almost entirely at the back end of a parking space, substantially concealed from view when a car occupied the space. It had been there for some six months.

It was the statutory duty of the DOH to inspect all state-maintained roads. A foreman inspected Cumberland Avenue at least every two weeks by driving along the street in a pick-up truck during business hours. It would have been impossible to see the hole in question if there had been a car parked there, and no DOH employee had ever made a ‘walk-around’ inspection, looking under the parked cars along the street. The Board of Claims rejected Ms. Maiden’s claim, but the trial court reversed the decision, entering judgment for Mrs. Maiden. The DOH appealed.

Held: The judgment for Ms. Maiden was upheld.

The Court said the law in Kentucky is that if a defect in a highway existed for such a period of time that the authorities, by exercise of ordinary care and diligence, should have discovered it, notice will be imputed. A “drive-along” inspection of a busy city street during business hours when parking areas normally were fully occupied – so that defects in the parking spaces cannot be seen – is not a reasonable inspection. Thus, the law assumed that the Department knew of the defect which caused her fall.

Kentucky, of course, is famous for unexpected holes, like the one that swallowed eight vintage Corvettes at a Bowling Green museum earlier this year.

The Court acknowledged that while the burden of inspection may be a serious problem to the DOH, it was not too great a burden to require an inspection of streets in commercial areas to be made in ‘off’ hours when the parking spaces are not occupied. The Court distinguished the facts from the Callebs case. In Callebs, the Court had held that DOH did not have a duty to make a ‘walk-around’ inspection of trees along the edge of the right of way. That defect, however, was not in the street itself but rather in the side of the road, and the area was a rural one with light travel rather than an urban one with heavy traffic. Besides, the Court observed, an effective inspection of the trees would have required the use of a considerable amount of time, whereas in this case, an effective inspection would not have involved more time but only the selection of a different hour in which to make it.

One judge dissented, arguing that there was really no distinction between this case and the Callebs case. A lone dissent, however, is an interesting footnote and little more.

Case of the Day – Friday, May 2, 2014

I WOULD WALK 500 MILES …

The Kentucky Department of Highways has a lot to do. Besides keeping up the state’s highways, the DOH has the duty to inspect roadside trees. And there are a lot of trees in Kentucky.

So many, in fact, that – like its habit with parking spaces (see yesterday’s decision) – the DOH favored drive-by inspections. You can see a lot of trees from the passenger seat of a Silverado. There are Proclaimers who would say it was better than walking 500 miles, and then walking 500 more, just to see the back side of some right-of-way trees.

Ioseb Besarionis Dze Jugashvili– you might have known him as “Papa Joe” Stalin – is reputed to have had a favorite saying, “Quantity has a quality all its own.” All right, he probably didn’t say it… after all, he spoke Russian with a strong Georgian accent, and “quality” and “quantity” probably are especially alliterative in that tongue. But when it came to the Kentucky DOH, the fact that its inspectors could inspect miles of trees every hour didn’t necessarily mean that they were getting it right.

When old Cecil Callebs came up on the bottom side of a sycamore tree that fell on his car during a windstorm, his widow sued the Department of Highways, arguing that if its inspectors had only gotten out of the car and walked a little, they would have known that the tree was rotten and a threat to passing motorists.

The case went to a state Board of Claims first. No one suggested that the DOH knew that the tree was decayed, but the widow Callebs argued that its employees would have known if they had only gotten out of the truck to inspect the tree. The Board disagreed, but when she appealed to a trial court, it sided with her. The DOH, it held, should have done a “walkaround.”

Whenever the analysis is focused on whether someone should have known something, rather than whether he or she actually knew it, the courts employ a balancing test (whether they call it that or not). The test considers how critical to its duty discovering the particular information was, and weighs that against how difficult discovering the fact would have been.

Here, the omission was a slight one, although the late Mr. Callebs might have disagreed. The tree had plenty of green leaves, and no defect was obvious from the highway. The DOH had a generalized duty to inspect and maintain trees along the highway. It missed one of the millions in its charge, but the error wasn’t an obvious one.

The Court of Appeals agreed that a “walk-around” would probably have discovered the defect. But such a “walk-around” would have been infeasible. Even if the DOH had the personnel to conduct such inspections, it probably would have had to get permission from private landowners to enter onto their property to see the back side of the tree. Multiply the permission process by thousands of trees, and the unreasonableness of expecting walking inspections is obvious.

Commonwealth v. Callebs, 381 S.W.2d 623 (Ky. 1964). Cecil Callebs was killed when a large sycamore tree, standing on the edge of the right of way some 12 feet from the edge of the pavement, fell across the highway and hit is car. Callebs’ estate filed a claim against the Kentucky Department of Highways for wrongful death with the Commonwealth’s Board of Claims. The board, after hearing evidence, found no negligence on the part of the DOH. The circuit court reversed, holding the DOH negligent. The DOH appealed.

Held: The Department of Highways was not negligent.

The Court of Appeals agreed that DOH lacked actual notice of the defective condition of the tree. The issue in the case, rather, was whether the department had constructive notice of the defective condition, or, stated another way, whether a reasonable inspection would have disclosed the condition. This involved, the Court said, “the question of how close an inspection was reasonably required.”

The leaves on the sycamore tree were green, and the defective condition of the trunk was on the side away from the highway. The defect could have “been discovered only by walking around behind the tree, which perhaps would have involved an entry upon private land abutting the highway.” The Court of Appeals observed that “[i]n order to affirm the circuit court judgment … we would be required to hold that as a matter of law the Department of Highways had a duty to make a ‘walk-around’ inspection of the tree, involving perhaps an entry on private lands. We do not believe that such is the law.”

The Court considered it important that the area around the tree was rural, and that the burden “of a walk-around inspection of each tree near the highway (perhaps requiring the obtaining of entry permission from the abutting landowners)” would be unreasonable in comparison with the risk. Note again in this case the distinction drawn by the Court between in-town and countryside. The Court concluded that highway authorities “under conditions such as existed in the instant case” do not have a duty as a matter of law to make the kind of inspection that would have been required here in order to keep the tree away from Mr. Callebs.

The Court reversed the trial court’s judgment, and let DOH off the hook.

Case of the Day – Monday, May 5, 2014

¡CINCO DE MAYO!

Either the aftermath of battle … or the morning after a U.S. celebration of Cinco de Mayo. The Mexicans, having more sense than we do, make little fuss over May 5th.

The French invaded Mexico because our neighbor to the south owed reparations to the Second Empire, but had decided a siesta was more salubrious than check writing. By contrast, Mr. Rush was looking to be paid for the work he had done for JoAnn Goodwin. Kelly is undoubtedly an arborist and landscaping specialist of the first water, but as a businessman … well, that’s another story.

Mr. Rush bid a job for JoAnn Goodwin. And like Gaul, it was divided into three parts. One part was tree removal, one was landscaping, and one was installation of a drain system. Of course, as soon as the job began, there was mission creep. More trees were to be cut down, and then more, and extra branches were to be hauled away. Rush diligently completed the extra work, but he wasn’t nearly so diligent in getting change orders signed by his customer, leading to inevitable confusion.

Alas, hilarity did not ensue. Instead, JoAnn denied asking for any more trees to be cut down, and alleged Rush was overcharging her. Rush said more money was owed. At that point, Kelly “Who Needs a Lawyer?” Rush sued Ms. Goodwin in Justice of the Peace Court, a very informal court in Texas for small issues. He won $4,500. It was his moment, his own victory at Puebla. But recall that after getting his Gallic butt kicked on May 5, 1862, French General Charles de Lorencez responded a year later with a second Battle of Puebla. No one talks much about that one, because the cheese eaters routed the Mexican forces and headed for Mexico City. Like Monsieur General, Ms. Goodwin regrouped, reprovisioned, and came after Mr. Rush again.

In her own second battle, Goodwin appealed to the regular trial court, which was obliged under Texas law to hold a whole new trial. At that trial, Rush’s damages fell from $4,500 to $200, despite the fact he showed the court the contract, two change orders Ms. Goodwin had initialed but not signed and one which he had prepared but she hadn’t even initialed.

The stubborn Mr. Rush appealed the $200 verdict. At the Court of Appeals, Kelly Rush found himself really swimming upstream. His only argument was that the trial court’s decision was contrary to the weight of the evidence, and those cases are hard to win on appeal. To make matters worse, in his zeal to save money, Mr. Rush forgot that sometimes lawyers are good for something. That “something” here would have been to get the documents he was relying actually admitted into the trial record so the court of appeals had something to look at. Without the missing documents – which Kelly Rush hadn’t introduced into the record – the Court of Appeals said it really had nothing to look at, and the $200 award stood.

Pozole – the national dish of Mexico.

Parenthetically, one would think that the trial court would have helped out layman Kelly Rush on coaching him to introduce the documents into evidence. But it wasn’t required to. We bet Kelly Rush was glad he saved so much money by not hiring one of those worthless lawyers to help him out! Lesson: Document your work. Get signatures from the customer. Hire a lawyer when you need one. After all, lawyers hire arborists when they need them. OK, end of lesson … and the pozole’s on!

Rush compained that he ended up cutting down many more trees than originally agreed to. Both Rush and Goodwin walked the property, and they agreed to have 26 trees cut down. But Rush said that after the initial agreement, the number of trees to be cut down kept changing. He claimed that the final agreement called for removal of 36 large trees, 14 small trees, and 1 large limb from Goodwin’s property, at an agreed-upon price of $200 for each large tree, $100 for each small tree, and $100 for removal of the large limb. The total was $8,700.

At trial, Rush presented an original contract which he had signed and Goodwin had initialed stating that 26 trees were to be cut down at $200 each and a large limb removed for $100, for a total of $5,300. As well, he presented a document only he had signed – a request for removal of 36 large trees at $200 each, 14 small trees at $100 each, and removal of a large oak branch at $100 – and another he had signed and Goodwin had initialed in part by Goodwin, reflecting an agreement to cut and remove 33 trees at $6,600.

No, this is not Mr. Rush on his way to hack down those extra trees. Rather, it is a Cinco de Mayo celebrant in a period costume, a Mexican version of a U.S. Civil War re-enactor.

Goodwin contended she only agreed to have 26 large trees removed from her property at $200 per tree. She said that after counting the stumps, only 26 trees had been removed, and that even if more than 26 trees had been removed, she never agreed to their removal. She maintained that Rush overcharged her $1,400 to remove trees that were not cut down. In addition to tree removal, the agreement called for removal of vegetation and growth, spreading of dirt, and removal of fences. Rush and Goodwin agreed that the cost of that project would be $3,600. Goodwin paid Rush $1,000 on the landscape agreement and still owed $1,600. She argued that because she overpaid $1,400 on the tree removal and other projects, she did not owe the $1,600 balance.

Rush also argued that after starting the project, Ms. Goodwin asked that extra side projects be performed, and the cost of these projects came to total of $749.94, none of which Goodwin paid. He filed suit without an attorney against Goodwin, seeking relief of only $1,600 but being awarded $4,500 plus court costs. A glorious and unexpected windfall! But Ms. Goodwin appealed to county court, where in a bench trial the court returned Rush to reality, awarding Rush a symbolic $200 with interest.

Rush appealed.

Held: Rush got only his $200 award.

In his appeal, Rush claimed he was underpaid for his work and essentially argued that the $200 damage award was against the great weight and preponderance of the evidence. When seeking review of the factual sufficiency of the evidence supporting an adverse finding on which the appealing party had the burden of proof, the appellant must show that the adverse finding is against the great weight of the evidence. The appellate court must weigh all the evidence, and may set aside the finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. The appellate court isn’t permitted to pass on the credibility of witnesses or substitute its judgment for that of the trial court.

The Court found that Rush had completely bollixed up the trial. During that proceeding, Rush referred to the various documents he said established the terms of the tree removal and landscape agreement, but he failed to ask the court admit any of them into evidence. The Court of Appeals said that in order for it to consider the documents, those papers had to have been introduced and admitted at trial. Without them, the Court could only examine the parties’ testimony. That testimony was largely in conflict, and it was the role of the trial court, not the Court of Appeals, to determine which party’s testimony was more believable.

The trial court’s award of only $200 in damages, the Court of Appeal said, was not overwhelmingly against the great weight of the evidence, especially when the alleged contracts were not in evidence.

Today, we consider what liability you might have when the people doing work for you cross the line. Literally. You know, as in trespass on the neighbors’ estate.. commit a trespass. We suspect there’s a backstory here of some neighbor animosity, as well.

The little Schievink homestead (300 acres, but that’s little in Texas, where everything’s bigger) was surrounded by the mega-hunt reserve Wendylou Ranch. Wendylou was having some fence put in, and hired Rudy’s Fencing to do the work. Eventually, Rudy’s accidentally colored outside of the lines with its bulldozer – a fairly minor mistake, which was promptly corrected and seemed to cause little damage – and the Schievinks raced to their lawyer’s office.

Something seems rather peculiar about this case, and we wish we knew the backstory. Maybe it was the Hatfields and McCoys. Or David and Goliath. Whatever the history between them, the Schievinks were bound and determined that they were going to hang the trespass on Wendylou (despite the fact that Rudy’s, a company with 25 employees and 20 years in business, probably could have easily paid for the actual damage caused to the 15-foot wide, 1,600-foot long strip that had been bulldozed accidentally). The cost and aggravation of litigation hardly seems worth it for them, although their lawyer must have been pleased.

We suspect the neighbors’ animosity toward Wendylou went back a long time.

To be sure, he fired both barrels at the mega-hunters. And missed. The Court found that Wendylou hadn’t been an aider or abettor of the trespass, because its people had been careful to identify the property lines, instruct Rudy’s to install the fence 15 feet inside the boundaries, and insisted on walking the boundary with Rudy’s staff before each segment of fence was installed to be sure everyone knew where the frontier on the frontier really was. It was mere happenstance that Rudy’s crew got ahead of schedule, and pressed on one day into new territory without alerting Wendylou’s manager that more boundary needed to be identified.

More important for our purposes today, the Court agreed with Wendylou that Rudy’s was an independent contractor. This was important, because while Wendylou would be responsible for the negligent acts of its employees, it was not responsible for in independent contractor’s accidental trespass.

So what is the difference between this case and those situations where the owner has to pay when the hired bulldozer over-dozes? Chiefly, it would seem to be the extra care Wendylou took to ensure that its contractor remained independent yet adequately directed. Misteaks do occur, but a careful property owner can minimize their effect. Usually, when an owner hires a guy with a ‘dozer, the transaction is much more casual.

… but people do. That’s why homeowners should be as careful as Wendylou … and they may still end up as defendants.

Wendylou hired Rudy’s Fencing to build a game fence around parts of its ranch. The manager of Wendylou, Mike Odell, gave verbal instructions to Rudy’s Fencing personnel about where the fence should be, and Rudy’s Fencing used its own equipment and — other than being told where to start, stop, or put a gate —was not instructed as to the details of building the fence or clearing the fence line.

Odell walked the boundary line with Rudy’s Fencing’s on-site during each stage of the construction, only going as far as the fence builders were expected to go in that stage. Odell checked the progress occasionally but did not supervise the day-to-day activities. Odell told Rudy’s to build the new fence two to three feet inside the old fence (which followed the boundary line) to keep from encroaching on the Schievinks’ land. Odell had not yet walked the fence line with Rudy’s at the point where the fence veered onto the Schievinks’ place, because Odell had thought the previous phase through a creek would take longer than it did.

Rudy’s used a bulldozer to clear the fence line. Rudy’s supervisor was confused about his location, and he directed the bulldozer operator to cut the boundary fence and follow another fence row onto the Schievinks’ property. The operator bulldozed a strip of land approximately 15 feet wide by 1,600 feet long before Mr. Schievink arrived to tell Rudy’s supervisor that they were on Schievink’s land.

The Schievinks sued Wendylou for trespass and for breaching a duty as an adjoining landowner. Wendylou moved for summary judgment because the evidence showed that Wendylou did not trespass on the Schievinks’ land or instruct Rudy’s Fencing to trespass, and because Wendylou is not liable for the trespass of an independent contractor. The trial court granted Wendylou’s motion for summary judgment. The Schievinks appealed.

A long fenceline, not a lot of landmarks denoting the property line … a 15-foot error was foreseeable, which is why Wendylou was so careful to instruct its contractor.

Held: Wendylou is not a trespasser. The Schievinks argued Wendylou breached a duty as an adjoining landowner by failing to instruct Rudy’s Fencing as to the property line, that Rudy’s Fencing wasn’t really an independent contractor, and — even if it were an independent contractor —Wendylou was negligent for failing to give adequate instructions to Rudy’s Fencing.

The Court agreed that a person may be liable for trespass if he aids, assists, advises, or causes another to enter the property, even if the person entering the adjoining land is an independent contractor. But here, the Court said, there was no evidence that the Ranch manager had any role in the trespass. Instead, he had guided the contractor to avoid trespass, but through confusion on the part of the independent contractor, the trespass had occurred anyway. The Court found no genuine issue of fact concerning Wendylou’s breach of any duty that it owed to the Schievinks to instruct Rudy’s Fencing as to the correct property line.

The Schievinks also argued that an issue existed whether Rudy’s Fencing was an independent contractor. If Rudy’s Fencing or its personnel were employees of Wendylou, rather than independent contractors, then Wendylou could be liable for their negligent acts under the doctrine of respondeat superior. But a person who hires an independent contractor is generally not liable for the acts of an independent contractor unless the employer exercises sufficient control over the details of the independent contractor’s work.

The Court considered seven factors in deciding that Rudy’s was an independent contractor: (1) the independent nature of the business; (2) the obligation to furnish necessary tools, supplies, and material to perform the job; (3) the right to control the progress of the work, except as to final results; (4) the length of time for which Rudy’s was employed; and (5) the method of payment, whether by time or by the job. The uncontested evidence showed that Rudy’s Fencing had been in the business for over 20 years, had 25 employees, had bid the job competitively by the foot, had furnished its own people and tools, and had supervised the day-to-day work.

The Court thus held that the evidence established as a matter of law that Rudy’s Fencing was an independent contractor.

Case of the Day – Wednesday, May 7, 2014

SOMEBODY HERE OWES ME MONEY

Donald Westlake could have used Lisa Huff for the dust cover model …

That’s what the Huffs believed after a tree broke off in a storm and hit Lisa on the noggin. Sure she could sue the property owner. Any regular reader of this blog knows that. But the Huffs needed a deep pocket. After all, Lisa had been injured. Someone had to pay.

That was when some canny lawyer noticed that the tree was located near power lines. Sweet! Power lines suggested the electric company, and everyone knows that the electric company has lots of money. Just look at how much we send them every month.

Problem: the tree wasn’t exactly inside the Ohio Edison easement. But that was a mere technicality to the Huffs, who argued that Ohio Edison hired Asplundh Tree Service to keep the trees trimmed away from the power lines, and that both the power company and the tree service must have known the tree that fell on Lisa was dangerous. This was the tort claim, and it might have merit if Lisa could prove they had actual or constructive notice of the tree.

But never stop with just alleging a tort, where you can pile on other legal theories as well. The Huffs’ attorney suggested a contract count, too. The Huffs, so the legal theory went, were the intended third-party beneficiaries of the contract between Ohio Ed and Asplundh. A third-party beneficiary can sue for a contract breach just as if she had signed the document herself. Asplundh had a contractual obligation to inspect and trim the trees to as to keep the public safe, the Huffs argued, and that included the passing public, which included the walking public, which included Lisa. Anything to get Ohio Edison and Asplundh to open their checkbooks!

It was a novel theory, but the Ohio Supreme Court shot it down. The Ohio Edison – Asplundh agreement was intended to secure services that would keep the power lines clear. While the agreement did require that Asplundh perform the trimming in a safe manner so as not to hurt anyone while it was doing it, that requirement only lasted as long as Asplundh was trimming. The Court wasn’t about to interpret the contract so broadly as to grant contract causes of action to millions of people who were never intended by the signatories to gain party status to a contract. You think the courts are busy now (and insurance premiums are high)? Just wait …

The takeaway here is a passing observation by the Court that parties to a contract can avoid the litigation spawned here by the Huffs simply by stating clearly that their contract is intended to benefit no one but each other. Including such a provision is a cheap preventative to the kind of lawsuit decided here.

Huff v. FirstEnergy Corp. (2011), 130 Ohio St.3d 196.During a heavy thunderstorm, a large sugar maple tree split about 25 feet above the ground. A large limb from the tree hit Lisa Huff, who was walking along a country road, causing serious and permanent injuries. Lisa G. Huff was injured during a walk along a country road.

Ohio Edison maintained an easement near the tree, but the tree was outside the easement. The tree did not present a hazard or threat to the power lines owned by the utility. Ohio Edison had hired Asplundh Tree Expert Company to inspect trees and vegetation along its power lines in this area and to remedy any situation in which trees or vegetation might affect the lines. Ohio Edison and its contractors carry out this work to ensure that adequate clearance is maintained around electric lines. Generally, Ohio Edison deferred to Asplundh’s decisions regarding tree and vegetation maintenance and would perform an overview inspection only to determine whether any vegetation was growing into the electrical wires or equipment. Asplundh had last been in the area where Huff’s injury occurred three years before.

Huff sued Ohio Edison and Asplundh, as well as Ohio Edison’s parent company, FirstEnergy, and the people who owned the land on which the tree was located. She alleged that Ohio Edison and Asplundh were liable for her injuries based upon their failure to inspect, maintain, and remove the tree or to warn the landowner and the public of the danger raised by the tree.

Ohio Edison and Asplundh filed motions for summary judgment. Ohio Edison argued that it didn’t know that the tree was dangerous, that it owed and assumed no duty to Huff regarding the tree, and that it was not negligent and did not proximately cause or contribute to Huff’s injuries. Asplundh argued that it owed no duty to Huff and that its activities did not proximately cause the injury to Huff.

The Huffs argued that Ohio Edison had contracted with Asplundh to inspect and maintain trees within the easement and that Asplundh failed to recognize that the tree in question was diseased and a hazard, and failed to remove the tree when it was on site in May 2001. The Huffs also argued that Ohio Edison was responsible for maintaining trees within and around its easement, that Ohio Edison was aware of the tree based upon its location within an inspection zone, and that Ohio Edison had a duty to remove the diseased tree.

The trial court found that while the tree leaned about ten degrees away from the power lines, “there is absolutely no credible evidence about when the tree began to lean or if it was leaning because of the way it grew.” It also noted that the Huffs admitted that no one knew when the tree became a hazard. With no proof that Ohio Edison or Asplundh actually inspected the tree or removed any branches, the court held that the Huffs failed to show that either company ever had actual or constructive notice of any decay of the tree. Due to the tree’s location – leaning away from the power lines with no limbs near the power lines – Ohio Edison and Asplundh owed no duty to the Huffs.

After examining the contract between Ohio Edison and Asplundh, it concluded that the Huffs were not third-party beneficiaries under the contract. It accordingly granted summary judgment to Ohio Edison and Asplundh.

The Court of Appeals cited the portion of the contract providing that “[Asplundh] shall plan and conduct the work to adequately safeguard all persons and property from injury” could be read in two ways: (1) a narrow reading that provides Asplundh must protect all persons from injury while Asplundh works on the site or (2) a broad reading that requires Asplundh to protect all persons from injury at all times, regardless of when the work is done. The court found the contract to be ambiguous, and reversed the trial grant of summary judgment to Ohio Edison and Asplundh.

The companies appealed to the Ohio Supreme Court.

Held: Summary judgment was granted.

The Court found that the contract between Ohio Edison and Asplundh did not create any duty to the Huffs as third-party beneficiaries. The Court employed an “intent to benefit” test. Under this analysis, if the promisee intends that a third party should benefit from the contract, then that third party is an “intended beneficiary” who has enforceable rights under the contract. If the promisee has no intent to benefit a third party, then any third-party beneficiary to the contract is merely an “incidental beneficiary,” who has no enforceable rights under the contract.

The law generally presumes that a contract’s intent resides in the language the parties chose to use in the agreement. Only when the language of a contract is unclear or ambiguous, or when the circumstances surrounding the agreement invest the language of the contract with a special meaning will extrinsic evidence be considered in an effort to give effect to the parties’ intentions. For a third party to be an intended beneficiary under a contract, there must be evidence that the contract was intended to directly benefit that third party. Generally, the parties’ intention to benefit a third party will be found in the language of the agreement.

In this case, the Court ruled, nothing in the agreement between Ohio Edison and Asplundh showed any intent to benefit the Huffs. The Huffs pointed to a part of the contract that they argue shows such an intent: an attachment to the agreement entitled “FirstEnergy Vegetation Management Specifications” that provided “[t]he Contractor shall plan and conduct the work to adequately safeguard all persons and property from injury.” The Huffs contended that this statement assigns to both Ohio Edison and Asplundh clearly defined duties – to safeguard the public – for the Huffs’ benefit.

The Court held however, that the contract wasn’t entered into for the general benefit of the public walking on public roads, but instead was designed to support Ohio Edison’s electrical service. The purpose of the contract is to ensure that Ohio Edison’s equipment and lines are kept free of interference from trees and vegetation. The remainder of the contract sets forth how this work is to be carried out, including the standards by which Asplundh is to perform its work, the limits on liability for the performance of the work, and the necessary qualifications for the Asplundh employees who were to perform the work. The contract contains no language establishing an ongoing duty to the general public on behalf of either Ohio Edison or Asplundh.

The vegetation management provision incorporated into the contract provides that “[t]he objective of all work covered by these documents is to maintain reliable and economical electric service, through effective line clearance and satisfactory public relations.” The Court observed that working near electrical lines has its inherent hazards, and it was thus “clear that this portion of the agreement establishes safety guidelines designed to protect persons and property from injury while the contractor performs its work. This period is finite: until the work has been completed … [T]he agreement cannot be plausibly read to require Ohio Edison or Asplundh to safeguard all persons from injury at all times, regardless of when the work is completed.”

The Supreme Court concluded that the Huffs thus failed to qualify as intended third-party beneficiaries of the Ohio Edison ­– Asplundh agreement.

Case of the Day – Thursday, May 8, 2014

CHIA JERK

We know what you’re thinking. Why are we talking about Chias? It’s not even close to Christmas.

The CHIA we’re discussing here isn’t a ceramic figurine smeared with seeds. Instead, it’s the Connecticut Home Improvement Act. And the “jerk” is a slick lawyer who tried to use it to cheat a local tree trimmer. We first discussed this case last January, but given that this week we’re talking about contracts between arboriculture professionals and landowners, this sad little cautionary tale bears repeating.

The takeaway here for the aspiring arborist should be entitled “make sure all your oral contracts are in writing.” That rule goes double when you’re messing with a homeowner who happens to be a slick lawyer. Don made a deal with Ronnie “The Mouthpiece” LoRicco to cut the lawyer’s grass. The contract was verbal. After all, it’s a lawn, for heaven’s sake. Who needs a lot of printed mumbo-jumbo for a lousy lawn?

We think you know the answer to that one. He started with cutting the grass, but one thing leads to another. The mowing became some grass seeding became some stone moving became some grading and some tree trimming and retaining wall construction. When Don, tuckered out after all of that hard work, went to collect for his labors, slick Ronnie yelled “Gotcha!” Well, perhaps not literally, but he might as well have, because he refused to pay the $2,277 bill, claiming he didn’t owe the arborist a farthing.

Don sued. The lawyer-defendant argued that under the Connecticut Home Improvement Act, Don should have given Ronnie a written agreement. Because Don didn’t, Ronnie said, he didn’t owe anything for all the work. Shades of Henry B. Swap tricking the hapless but industrious Mike Mulligan! But like the classic story about the plucky steam shovel Mary Anne, today’s case has a happy ending.

When Ronnie moves for summary judgment on the grounds that Don violated the CHIA, the trial court showed the solicitor that it could get just as hyper-technical as he could. The work Don did, according to the court, seemed more like “maintenance services” than home improvements. That argument might be a hard sell where lawn planting and wall building are concerned, but what we have here is a court doing a little distributive justice. Plus, the court said, Don was asserting that Ronnie had raised the CHIA defense in bad faith, invoking the Act not because he was a sheep-like homeowner fleeced by an unscrupulous contractor, but instead because Ronnie had never intended to pay Don to begin with.

Don believed he was the one getting sheared, and the court — apparently thinking the same thing — intended to give Don a chance to prove it. But what a cautionary tale! Simple projects all too often become complex projects, and the fifty states have a patchwork of consumer protection laws that serve as a snare for the unwary arborist. Support your local lawyer! Spend a few bucks to be sure that the slick Ronnies of the world don’t try to shear you.

Don’s Landscaping and Tree Service v. LoRicco, Not Reported in A.2d, 2007 WL 2938602 (Conn.Super. Sept. 21, 2007). Don’s Landscaping entered into a verbal agreement with LoRicco for lawn cutting services, which over time mushroomed into installation of a lawn, grading, removal of stones, seeding, moving of trees, planting and building walls. When LoRicco decided not to pay, Don’s sued for the amount due, $2,277.00. LoRicco denied owing Don’s any money, and moved for summary judgment on the grounds that the landscaper’s suit was barred under the Connecticut Home Improvement Act because Don’s didn’t give LoRicco a written contract. Don’s complained that LoRicco was an experienced attorney familiar with Connecticut law looking to beat Don’s out of payment, using the CHIA in bad faith.

Held: Summary judgment was denied to the lawyer-defendant. The trial court noted that for LoRicco to satisfy his burden he had to make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. That evidence had to be viewed in a light most favorable to the opponent. In this case, although the Home Improvement Act refers to landscaping, there was a real question of fact whether the services provided by Don’s were governed by the Act. They appeared to be maintenance services, and not “home improvements.” What’s more, the Court credited Don’s allegations, finding they raised questions of fact of whether LoRicco’s reliance on the Act was a bad-faith dodge (of course it was). For those reasons, the summary judgment was denied.

So Don got his day in court, but it was a day that shouldn’t have ever had to arrive. There is a thicket of local, state and (sometimes) Federal law out there – in addition to a substantial body of common law – just waiting to prove a snare to unwary but well-meaning people like Don. And you. A stitch in time saves nine. Here, a little piece of paper would have saved Don a lot of aggravation and legal costs.

Case of the Day – Friday, May 9, 2014

GOOD DRAFTING DOESN’T ALWAYS PREVENT LITIGATION

We have previously noted that inexact lawyering can lead to needless litigation. That’s not to say that good draftsmanship will necessarily avoid litigation, but — as we see in today’s case — it always helps.

Dugger got the logs – Worley was left with the stumps …

Mrs. Dugger hired a Kentucky Certified Master Logger, Tommy Thomas, to log her land. She signed a contract with him which specified, among other things, that ‘ol Tom-Tom was an independent contractor. Well, master logger or not, Tommy Boy wasn’t a master listener. Although Mrs. Dugger told him she didn’t own the land across the crick and he shouldn’t log it, he did anyway.

Predictably, the woman who owned the land on the other side of the watercourse sued, naming both Tommy T. and Mrs. Dugger as defendants. Mrs. Dugger’s lawyer was successful in getting her dismissed from the lawsuit on summary judgment. Kentucky law was clear that an owner wasn’t liable for the errors of an independent contractor, and Tommy Thomas clearly was an independent contractor. The written agreement between the two of them was a great help in establishing this, as well as to prove that Mrs. Dugger had told her contractor where her property boundaries lay.

The appeals court agreed, holding that Thomas’s master logger certification meant he should have known better. The contract helped show that the parties always contemplated he would be an independent contractor, and he in fact did control the manner of the work and how it was accomplished. Mrs. Dugger might have been liable anyway if the cutting was “work involving a special danger.” But in Kentucky, the Court said, cutting has been held not to be especially dangerous. Master logger Tommy T. was on his own.

Just prior to trial, Mrs. Dugger won summary judgment on the basis that Thomas was acting as an independent contractor at the time he wrongfully took timber from Worley’s property. Later, a default judgment was entered against Thomas on the issue of liability. Worley moved to vacate the summary judgment and get Mrs. Dugger back into the lawsuit. When the court refused to vacate, Worley appealed.

Held: Summary judgment in favor of Mrs. Dugger was appropriate. The trial court found Thomas was acting as an independent contractor at the time when he wrongfully took timber from the plaintiff. Thomas was told not to log beyond the borders of Dugger’s property, something admitted under oath. What’s more, Mrs. Dugger was not vicariously liable for Thomas’ wrongful timber harvest because she failed to adequately instruct him. Although landowners had been found liable in another cases where independent contractors had cut trees from neighboring land, that was because the landowners had their contractors cut trees in spite of not knowing where the boundary lines were located.

Here, the Court said, Mrs. Dugger explicitly instructed Thomas to not exceed the boundaries of her property beyond the creek. Thomas, on his own initiative and contrary to Mrs. Dugger’s instructions, crossed the creek onto Worley’s land. Thomas was a “Kentucky Certified Master Logger,” and the Court held that this certification meant that Thomas should have been familiar with his duty to observe boundary lines to avoid the possibility of liability.

Lucky thing Mrs. Dugger had written evidence of her logger’s independent contractor status.

Plus, Thomas’s contract with Mrs. Dugger clearly identified him as a “contractor.” In Kentucky, as a general rule employers are not vicariously liable for the acts of independent contractors. The right to control the work, and the methods of its performance, are determinative on the question of whether one is a servant or an independent contractor. If the employer retains the right to control the work and the manner in which it is done, those doing the work are servants. On the other hand, if an employee has the right to control the manner of work and the right to determine the means by which results are accomplished, he is deemed an independent contractor and the employer is not responsible for his negligence.

The exception to the general rule is that if the work to be performed is either a nuisance or is inherently dangerous, the employer will not be absolved from liability. The Court ruled that tree cutting is not “work involving a special danger” as contemplated by the law. Here, the Court held, Thomas was an independent contractor because he controlled the manner of the timber cutting as well as the means he would use to complete the job. Under the facts of this case, the work of cutting timber upon Mrs. Dugger’s land was neither a nuisance nor inherently dangerous. Thus, Mrs. Dugger could not be held liable for Thomas’ negligent work.

Case of the Day – Monday, May 12, 2014

SOMEONE’S GOTTA DO SOMETHING

Not surprisingly, everywhere we go, friends, family, roadies, hangers-on and supplicants bring us their most burning tree law issues. It must be what Johnny Manziel experiences … fans asking for football tips, wanting to buy autographs, asking whether he really has to play for the Cleveland Browns – that sort of thing.

A loyal reader complained last week that he has a large dead tree in his tree lawn — the strip of grass between the sidewalk and street — and, despite repeated complaints to local government, the city had yet to send anyone to cut the tree down. He wondered whether the tree had to fall on a passing motorist before the city — we’ll call it Deadfall, Ohio — did something.

He raised an interesting question, one we’ll consider for the next two days. Actually, there are two questions at minimum. One came as a surprise to our reader, whom we’ll call Michael Anthony Pettine, Jr. (not his real name). Could it be that Coach might be liable if the tree falls on a motorist, and should he have the tree taken down himself? And if the tree falls, might the City of Deadfall also be liable if the tree falls?

So someone’s gotta do something about the tree. But is the someone Coach Pettine or the City?

Dealing with City government can be a pain in the …

Today, we’ll consider Coach Pettine’s liability. There’s no doubt that the tree lawn is Coach Pettine’s property, despite the fact it is subject to the City’s highway dedication. There’s a lot an owner can’t do with a tree lawn because of the City’s highway rights, but it’s still his or her property. Generally, the owner can plant and take down trees. And the fact that an owner has the right to add or remove trees suggests that he or she has a duty to as well.

Consider the duty. In Wertz v. Cooper, one of Cooper’s trees fell onto Wertz’s fence during a storm. When Wertz sued her, she countered that she had no idea the tree was diseased, and that the tree’s falling over was an act of God. The Court agreed. It held that in order for a landowner to have a duty, the evidence must establish that he or she had actual or constructive notice of a patent danger that the tree would fall.

There is an exception. Where the tree overhangs the street in an urban area, an owner may be held liable on negligence principles under certain circumstances for injuries or damages resulting from the tree or a limb falling onto the highway. Generally, an urban owner has a duty of reasonable care relative to his or her trees, including inspection to make sure that they are safe.

So Coach Pettine may have a problem (besides the obvious one that he’s the 8th head coach of the Browns since 1999, a history that suggests he should rent, not buy). The duty to inspect isn’t an issue here. Coach already has actual notice the tree’s dead, and his complaints to the City of Deadfall stand as evidence of his state of mind. Whether the City does something or not, Coach Pettine would do well to hire a starting quarterback … and an arborist to inspect the tree. If the tree should go for safety’s sake, Coach Pettine shouldn’t wait for the City to do it.

Tomorrow: Is the City liable to remove the tree, independent of Coach Pettine’s obligation as a landowner?

Cooper argued that she had no knowledge of a defective condition of the tree, that she could not have been negligent in failing to maintain the tree, and that she could not be liable for the damage when an “act of God” caused the tree to uproot. The trial court agreed that there was no evidence that the tree was deteriorating, and that Cooper was not liable for an Act of God.

Wertz appealed.

If the dead tree falls on a car, watch the scramble to avoid liability begin …

Held: Judgment for Cooper was upheld. A negligence action in Ohio requires a plaintiff to establish that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant’s breach, the plaintiff suffered injury. In order for a plaintiff to establish the duty element in a negligence action arising from a fallen tree, the evidence must establish that the landowner had actual or constructive notice of a patent danger that the tree would fall.

There is an exception to the general rule, however, concerning the duty of a property owner relating to growing trees with limbs overhanging a public street or highway. An owner of land abutting a highway may be held liable on negligence principles under certain circumstances for injuries or damages resulting from a tree or limb falling onto the highway from such property. In addition, there appears to have developed a distinction throughout the United States that there is a lesser standard of care with reference to rural, farm, timber, or little used land as opposed to strictly urban property. Generally, an urban owner has a duty of reasonable care relative to the tree, including inspection to make sure that it is safe. The duty placed upon the urban landowner, who has only a few trees, is not a heavy burden. This is in contrast to the rural landowner who may have a forest full of trees, which would impose a duty of immense proportions, and constitute an onerous burden on the owner.

Despite the heightened standard to be applied to an urban tree, Wertz had no evidence in this record to establish that Cooper had either actual or constructive notice of a defective condition of the tree. While Wertz advanced her belief that the tree was dead or dying, her allegation was conclusory. She presented no evidence to support her claim. What’s more, even if Wertz were right that she believed that the tree was dead or dying hardly establishes that Cooper knew or should have known that the tree was dead or dying.

Case of the Day – Tuesday, May 13, 2014

PUMPED UP ON DANGER TREES

Yesterday, we took up the question posed by alert reader whose identity we artfully disguised. He wondered who might be liable if a dead tree in his tree lawn fell onto a passing motorist. The homeowner – we’ll call him “Lance Armstrong” today (although that’s not his real name) – was frustrated because his hometown, the City of Deadfall, Ohio, had resisted his petitions and remonstrances to remove the offending, ant-eaten carcass.

In our discussion of Wertz v. Cooper, we delivered the bad news that Lance, as owner of the strip of grass between the public sidewalk and street, may well be liable. As an urban property owner, he has, shall we say, a “performance-enhanced” duty to inspect and remove trees that may “test positive” as posing a danger to third parties passing on public streets.

So Lance’s hanging out there a country mile (or maybe a city mile, because he is an urban landowner, and Wertz tells us they’re different). But is he hanging out there alone?

The City told Lance he must be on dope to think the municipality would pay to remove the tree. But Lance denies –vehemently denies– that he’s taken any drugs. And call us gullible, but we believe him. After all, although he owns the tree lawn, it lies within in the 60-foot wide right-of-way of Arbor Street. The Ohio Supreme Court has pointedly said that the “roadway, the space immediately above the roadway, the shoulder, the berm, and the right-of-way are all under the control of the political subdivision … [which] has a duty to keep the areas within its control free from nuisance, i.e., conditions that directly jeopardize the safety of traffic on the highway. Where the [subdivision] fails in its duty, it may be liable for injuries proximately caused by the nuisance.” Manufacturer’s Nat’l Bank of Detroit v. Erie County Road Comm (1992), 63 Ohio St.3d 318, 322-23.

So the City has his back (or is on the hook, depending on your viewpoint). Of course, the City has to have actual or constructive notice of the defect, just like the landowner in yesterday’s case. However, Lance is no dope, and he’s already written to the City fathers and mothers about the danger tree, making any attempt to prove the City had actual knowledge what lawyers (or bicycle racers) call a “breakaway.”

Today’s case relates to an unfortunate man who was killed when a dead tree fell onto his car one stormy November night. The tree was on private property out in the country, but it had been dead for so long that the landowner may have had liability. We can’t tell, because this case — in the Ohio Court of Claims — was solely against the Department of Transportation. The Court held that ODOT would be liable, notwithstanding the fact that the tree was on private land, if it had breached its duty to inspect the tree.

If “Lance” happens to ride a bike, he might be at risk from the decayed tree, too …

ODOT had a “drive-by” inspection program, reminiscent of one we considered last week in Maiden v. Commonwealth of Kentucky. Blusey’s heirs argued that if ODOT had gone around behind the tree (away from the road), they would have seen the decay. Well, yes, the Court said, but that’s beside the point. ODOT has over 40,000 miles of road to inspect, and to inspect every tree in the manner suggested by the plaintiff would be economically infeasible.

Still, the principle we take away from this decision is that just because the tree is on private land, the City of Deadfall doesn’t get off the hook. That doesn’t mean that Lance’s going to feel that much better in the defendant’s dock if the mayor has to stand next to him.

Our sad conclusion: Lance may not be the only one liable here, but he does appear to be the only one who’s acting responsibly (a fact which alone is enough to move us to approbation – about time, Lance!). His most prudent course is to continue acting responsibly, and to get a consulting arborist to examine the tree. A consulting arborist’s expert report that the tree is a hazard may cause the mayor to oil her chainsaw and get to work. But if the City remains unmoved, Lance should probably have the tree taken down himself. He seems pumped up enough to do it …

Blausey v. Ohio Dept. of Transp., Not Reported in N.E.2d, 2005 WL 894878 (Ohio Ct.Cl.), 2005 -Ohio- 1807. Dale Blausey was killed during a windstorm when the car he was driving was struck by a falling Norway spruce tree on a U.S. highway in Erie County, Ohio. The tree had been growing on a roadside right-of-way obtained by defendant on land that was owned by Joe Henry but occupied by a tenant. The primary proximate cause of the fall was the severe deterioration of the roots on the east side of the tree and the high wind that blew the tree onto the highway. The tree had been struck by lightning in 1973, and the damage from that strike led to interior rotting and an infestation of carpenter ants, the combination of which destroyed much of the root system. The deterioration had existed for as long as ten years, gradually weakening the tree to the extent that it became a hazard.

Before it fell, the east side of tree that faced the highway showed little, if any, evidence of decay. Dead limbs were not clearly visible from the highway. Limbs had been removed from the lower part of the tree, which was not uncommon as landowners sought to mow, decorate, or otherwise use the land. Additionally, the lower part of the tree was obscured by bushes and vegetation. The upper growth of both the healthy and the diseased spruce trees was green and quite similar, although on close inspection, the growth on the healthy spruce appeared to be slightly more dense. Cone growth was normal on both trees. Although the 1973 lightning strike had caused the tree to lose its “Christmas tree” shape at the top, the loss was not very noticeable. However, an inspection of the west side of the tree would have revealed evidence of deterioration and of a potential hazard. The State had not inspected the tree except from the highway, and that inspection did not reveal any defect.

Blausey’s executor sued the State for negligence in not identifying and removing the danger tree prior to the accident, and accused it of maintaining a nuisance.

Held: The State was not negligent. In order to prevail upon a claims of negligence, a plaintiff must prove by a preponderance of the evidence that defendant a duty, that it breached the duty, and that the breach proximately caused the injury. The State has a duty to maintain its highways in a reasonably safe condition for the motoring public, but it doesn’t have to become an insurer of the safety of state highways.

To constitute a nuisance, the thing or act complained of must either cause injury to the property of another, obstruct the reasonable use or enjoyment of such property, or cause physical discomfort to such person. In a suit for nuisance, the action for damages is predicated upon carelessly or negligently allowing such condition to exist. But in order for liability to attach to a defendant for damages caused by hazards upon the roadway, a plaintiff must show the defendant had actual or constructive notice of the existence of such hazard. The distinction between actual and constructive notice is in the manner in which notice is obtained or assumed to have been obtained rather than in the amount of information obtained. Wherever from competent evidence the trier of fact is entitled to hold as a conclusion of fact and not as a presumption of law that information was personally communicated to or received by a party, the notice is actual. Constructive notice is that which the law regards as sufficient to give notice and is regarded as a substitute for actual notice. To establish that defendant had constructive notice of a nuisance or defect in the highway, the hazard “must have existed for such length of time as to impute knowledge or notice.

The court found that there was insufficient discernible evidence available to defendant’s inspectors to warrant further investigation of the damaged tree or to determine that it was hazardous prior to the accident. While a close inspection of tree would have revealed that tree was a hazard, the deteriorated condition of tree was not apparent through Department’s routine visual inspections from roadway, and with over 40,000 miles of road to inspect, the Department was not — as a matter of social and economic policy —expected to individually inspect the trees.

Case of the Day – Wednesday, May 14, 2014

IF A TREE FALLS …

This Louisiana case is another in our continuing series of “someone got badly hurt, so obviously someone else has gotta pay.”

Today, a couple lived in a house leased from their physician daughter (so we already know who in this saga has money). The couple wanted to have a dangerously leaning tree taken down. They hired a landscaper, who in turn hired someone who represented himself as a guy who could take down a tree.

Gunnery Sergeant Daniel Daly, one of only two men to ever win two Medals of Honor, exhorted his fellow Marines to charge the Germans at the World War I Battle of Belleau Wood, shouting, “C’mon! Do you want to live forever?” A brave sentiment during battle, but a pretty foolhardy when removing trees.

The tree cutter had all the safety equipment, but he didn’t use it. After all, it was just a tree. Safety is for wimps! After all, do you want to live forever? The tree cutter obviously didn’t care to do so. He directed the landscaper, who was helping him, to harness the tree to his pickup truck. During their Keystone Cops antics, the landscaper’s truck pulled down part of the tree. Sadly, the tree cutter was attached to it at the time.

The tree cutter sued the landowner and the tenants. But of course! He arguing that the doctor daughter and her parents (and, of course, their insurance company) should pay because they didn’t warn him. Warn him to do what? To use his safety equipment? That the law of gravity was in force? That God may protect fools, but not for very long?

Fortunately, common sense prevailed …

Frazier v. Bryant, 954 So.2d 349 (La.App. 2 Cir. Apr. 4, 2007). The Bryants lived on a property owned by their daughter, Dr. Garrett, based on a verbal lease between them. Mr. Bryant wanted to have a large tree removed because it was leaning toward the house and several of the limbs of the tree were near the roof. He contacted Ron’s Lawn Care to take down the tree.

Mr. Hughes, the owner of Ron’s, hired Mr. Frazier, who had previously approached Mr. Hughes offering his services in tree removal. Mr. Frazier climbed up to the top of the tree and started to cut away the top limbs. He wore a climbing harness and was attached to a climbing rope that was strung over the top of the tree, but he hadn’t connected a lanyard rope that would have secured him to the tree. Mr. Hughes was using his pickup truck to direct portions of the tree away from the house. At some point, Mr. Hughes pulled with his pickup truck and the entire top of the tree came down. Mr. Frazier, still attached to the climbing rope, came down with the tree. He was badly injured.

Tree vs. truck – who wins? Certainly not the people taking down the tree …

Held: The tree cutter falls again. Under Louisiana law, most negligence cases are resolved by employing a duty/risk analysis with elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injures (the cause-in-fact element); (4) whether the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Here, the Court said, Mr. Hughes was pulling on the tree because he was told to do so by plaintiff Frazier. No other defendant exercised such control over the operation as to be liable for the accident.

Mr. Frazier argued that the Bryants were liable for failing to warn him of the defective condition of the tree. The Court said that owner or custodian of a thing is liable for damage only upon a showing that (1) he or she knew or should have known of the defect which caused the damage, (2) that he or she knew or should have known that the damage could have been prevented by the exercise of reasonable care, and (3) that he or she failed to exercise such reasonable care. Here, the Court said, no evidence showed that any defect in the tree existed. At most, the evidence suggested that the tree was leaning due to erosion at the base of the tree, the Court held, and nothing indicates that this condition caused Mr. Frazier’s fall.

Case of the Day – Thursday, May 15, 2014

WHO YOU GONNA CALL?

It’s not easy to defeat a utility company holding an easement for transmission lines, especially after the great power outage of a decade ago. The great Blackout of August 2003, after all, started because power lines sagged into trees in the Cleveland, Ohio, area.

Yeah, it’s not easy to beat the power company and its chainsaw-wielding minions … but the Corrigans did it for awhile. They had granted an easement to a Cleveland electric utility for a transmission line. In the wake of the blackout, the utility told the Corrigans (and thousands of others) that it would vigorously pursue cleaning up vegetation in the easements. This mean, among other things, no trees within 25 feet of the lines.

The Corrigans had a big silver maple that was about 22.5 feet from the lines. They loved the tree, so they hired an arborist at considerable expense to trim the tree away from the lines and to inject the tree with a hormone to slow growth. Tough luck, the utility said, it’s coming down anyway.

So who do you call when the power company shows up with chainsaws and a gleam in its institutional eye? The Corrigans raced to the local common pleas court, and asked for an injunction. The trial judge agreed, and the Court of Appeals concurred. Both of those courts sided with the Corrigans that the utility could only cut trees that were “a possible threat to the transmission lines.”

It seemed important to the Court of Appeals that the community had not experienced any service interruptions since the Corrigans had pruned the tree, although that reasoning’s pretty thin. The tree has to only fall once, cascading one failed transmission lines into a continental disaster. But the Court seems to have been favorably impressed by the amount of money the Corrigans had spent getting the tree professionally trimmed.

The utility saw an issue here that was bigger than just the Corrigans and their lone silver maple tree. It framed the question as being just who was in charge here, the 88-odd common pleas courts spread throughout Ohio or the public utilities commission. The Ohio Supreme Court agreed that this was indeed the issue, and ruled that the inclusiveness of the state statute and regulations delegating power to the Public Utilities Commission of Ohio gave PUCO the sole authority to decide questions of vegetation management.

We have to admit that the Court of Appeals had left us with the uneasy feeling that the Court of Appeals’ attempt to do some rump justice here may have made it much more difficult for a utility to exercise its easement rights. To be sure, a utility being sued in a case like this would have to be prepared with an expensive and eye-popping case that graphically depicts the dangers that a tree in the transmission path — even a well cared-for tree — can pose.

The Ohio Supreme Court’s holding provides electric utilities a much friendlier forum in which they must litigate issues of vegetation management, although that may not be a bad thing. Utilities have to walk a fine line, incurring ire if property owners think trees were pruned too aggressively, and facing universal fury when service is interrupted by vegetation coming into contact with transmission and distribution lines.

Corrigan v. Illuminating Co., 122 Ohio St.3d 265 (Sup.Ct. Ohio 2009). The Corrigans granted a quitclaim deed to The Illuminating Company, the local electric utility, for a transmission line to run through their yard. The easement gave the Illuminating Company the right to “enter upon the right-of-way occupied by said transmission lines … with full authority to cut and remove any trees, shrubs, or other obstructions upon the above described property which may interfere or threaten to interfere with the construction, operation and maintenance of said transmission lines.” The Corrigans had a large silver maple tree located about 22.5 feet from the centerline of the transmission lines. At considerable expense, they had their own arborist trim the tree and inject slow-growth hormone to keep the tree from posing a risk to the transmission line. Nevertheless, the Illuminating Company decided to remove the tree, and the Corrigans sued for an injunction.

The trial granted an injunction barring the Illuminating Company from removing the tree, and the Court of Appeals agreed. The electric utility, seeing the issue as one that transcended the issue of one tree, but rather affected the company’s ability to manage vegetation in its rights-of-way throughout the state.

Held: The Corrigans argued that the issue was purely a contract matter, but the Supreme Court disagreed. Noting that “[t]here is no question that the company has a valid easement and that the tree is within the easement” and the easement’s language was unambiguous that the utility had the right to remove trees that might interfere with its transmission lines, the Court said the issue was the correctness of “the company’s decision to remove the tree instead of pruning it.” That was “really an attack on the company’s vegetation-management plan [and] that type of complaint is a service-related issue[] which is within PUCO’s exclusive jurisdiction.”

The statute creating PUCO to administer and enforce these provisions provides that the commission hears complaints filed against public utilities alleging that “any regulation, measurement, or practice affecting or relating to any service furnished by the public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential.” This jurisdiction is “so complete, comprehensive and adequate as to warrant the conclusion that it is likewise exclusive.”

The Court used a two-part test to reach its determination. First, it asked whether the commission’s administrative expertise was required to resolve the issue in dispute, and, second, whether the act complained of constituted a practice normally authorized by the utility.

The Ohio Administrative Code chapter on electric service and safety standards requires that utility companies establish a right-of-way vegetation-control program to maintain safe and reliable service. The Code requires that each electric utility inspect its electric-transmission facilities (circuits and equipment) at least once every year, in accordance with written programs, and takes a number of factors into consideration such as arcing, sagging, and line voltage as well as regulatory requirements from OSHA, FAA, and the Army Corps of Engineers. In addition, electric utilities are required to comply with the American National Standard Institute’s National Electrical Safety Code. The utilities are required to submit their programs to the Commission, which will resolve any disputes as to the efficacy of the plan.

The Court concluded that the Ohio Administrative made it clear that PUCO’s administrative expertise is required to resolve the issue of whether removal of a tree is reasonable.

The second part of the test determined whether the act complained of constitutes a practice normally authorized by the utility. Again, the Court said, the Administrative Code made it clear that vegetation management is necessary to maintain safe and reliable electrical service. Thus, the Supreme Court ruled, the second part of the test was satisfied, and the Corrigan’s complaint fell within the exclusive jurisdiction of PUCO.

That meant that the Illuminating Company’s decision that the silver maple interfered or threatened to interfere with its transmission line was a service-related question, and one that the Corrigans could only dispute in front of PUCO. The Court of Appeals judgment was thrown out.

Case of the Day – Friday, May 16, 2014

TRAGEDY AND CLEVER LAWYERING

When a late summer storm blew up in Minneapolis, Chauncey Moua and his wife decided to retreat to the safety of their home to await its passing. They pulled up at home to take shelter. That’s when Mr. Moua decided to park in front of the neighbors’ house, because the neighbors’ tree, the branches of which were overhanging the Moua homestead, was swaying dangerously in the high winds. As he parked the car, a branch fell, killing him.

Mrs. Moua sued her neighbors, the Hastings, for negligence. That was hardly a surprise, but the count for trespass she added made the case unusual. Her claim was novel: she alleged that branches from the Hastings’ tree fell on the Moua property, creating a trespass. The damage from the trespass, she claimed, was the death of Mr. Moua.

Credit her lawyer with a creative argument, but the Court of Appeals said “no cigar.” Mr. Moua had pulled up in front of the neighbors’ house, and was standing in the street next to his car when he was struck. In other words, the tree branch that caused the damage – that is, struck Mr. Moua – was not trespassing on Moua property. As for the claim that the trespassing branches on Moua’s property forced Mr. Moua to move his car elsewhere, and while doing so he was killed, the Court found the injury to Mr. Moua was too remote to the trespass for a causal link to have been shown. Shades of Mrs. Palsgraf!

The original “reasonable foreseeability” negligence action … a Rube Goldberg tort if ver there was one.

What, you might wonder, was to be gained from adding a trespass count to the lawsuit? Mrs. Moua had already claimed the neighbors were negligent in not taking care of their tree. The answer lies in fault finding. To win a negligence count, Mrs. Moua had to show the neighbors had actual or constructive notice that the tree was dangerous. Trespass is much simpler. All Mrs. Moua had to show there was that the branches fell onto the Moua property. A trespass cause of action would make collecting big bucks from the Hastings much easier.

The Court left for another day the interesting question of whether a falling branch belonging to another that strikes a landowner on his land might be a trespass.

Moua v. Hastings, Not Reported in N.W.2d, 2008 WL 933422 (Minn.App., April 8, 2008). Blia Moua and her husband, Chauncey Moua, left their home in Minneapolis to pick up their daughter from work. After driving a few blocks, they noticed that the weather suddenly worsened. Moua and her husband became fearful and decided to return home after they saw tree branches falling due to the heavy rain and wind. When they got there, they stopped their vehicle in front of their own home, but Chauncey decided to move the car because he was worried that the storm would blow branches of trees belonging to their neighbors, the Hastings, onto the car. The Hastings lived next door to the Mouas, and some branches of a tree in their front yard hung over the Mouas’ yard. Mr. Moua parked the vehicle in front of the Hastings’ home — where he parked often — and got out of the car when a branch fell from a tree, killing him.

Mrs. Moua admitted that she saw the Hastings’ trees on a daily basis and had never noticed any dead branches. Neither she nor her husband had ever asked the Hastings to trim the trees.

After the Mouas sued for trespass and negligence, the Hastings moved for summary judgment. As for Mrs. Moua’s claim that the branches that had fallen were a trespass on her land by the Hastings, the trial court held that Mrs. Moua had not established how the branches interfered with her use and enjoyment of her property, and the only danger caused by the tree’s branches was due to a severe storm that was noted as one of the worst in several years. Mrs. Moua appealed.

Mrs. Moua’s lawyer was pretty sharp – just a little ahead of his or her time.

Held: Summary judgment was affirmed. The Court of Appeals held that in Minnesota, a cause of action for wrongful death is purely a legislative remedy. A cause of action for wrongful death exists when death is caused by the wrongful act or omission of any person. Although causation is generally a question of fact for the jury, where reasonable minds can arrive at only one conclusion, causation becomes a question of law, and it may be disposed of by summary judgment. Trespass encompasses any unlawful interference with one’s person, property, or rights, and requires only two essential elements: a rightful possession in the plaintiff and unlawful entry upon such possession by the defendant.

Here, the Court said, the trial judge correctly concluded that even if there had been a trespass, there was no causal link between that trespass and the injury that occurred. The undisputed facts showed that the injury to Mr. Moua occurred on the public street in front of Hastings’ house. Even looking at the evidence in the light most favorable to Mrs. Moua, the Court said, as a matter of law she failed to present a causal link between the alleged trespass by the Hastings’ tree branches and Mr. Moua’s death in the street.

The Court thus concluded that summary judgment in favor of the Hastings on the wrongful death claim was proper.

Case of the Day – Monday, May 19, 2014

POUNDING ON THE TABLE

The old trial strategy aphorism recommends that “if your case is weak on the law, pound on the facts; if it’s weak on the facts, pound on the law; and if it’s weak on the law AND facts, pound on the table.”

It doesn’t work all that well, as our hapless landowners in today’s case, the Wimmers, found out. The Wimmers (rhymes with “winners,” which is ironic given the outcome here) owned land for which they had given the electric utility an easement for its power lines. That’s pretty common – anywhere power or communications lines cross over land, or pipes run under the ground, there’s probably an easement involved. The easement in the Wimmers case let Ohio Edison trim and remove trees as needed to keep vegetation clear of the lines.

The Wimmers didn’t want to see much of their foliage cut away, but because trimming and removing trees costs money, the utility didn’t want to do more than was absolutely necessary. Thus, there was a happy confluence of interest that continued for years.

Then came August 14, 2003. Some high-voltage transmission lines owned by the same Ohio Edison – hot from weather and the high electrical demand of the day – sagged into untrimmed trees just south of Cleveland. Three lines shorted out simultaneously. Normally, such a condition would have tripped an alarm at a monitoring center, letting technicians redistribute the load. But a bug in the software permitted what engineers call a “race condition,” and the alarms didn’t sound. The result was a cascading power failure that became the great North American Blackout of 2003, affecting 55 million people on the eastern seaboard and midwestern United States, as well as the province of Ontario.

After that day, everything changed. The public fumed, the media chastised, politicians fulminated. Changes had to be made. Ohio Edison was understandably humiliated by being the utility whose poor vegetation management started it all. Suddenly, occasional and desultory tree trimming became much more scorched earth. For the Wimmers, that meant that the power company’s crews showed up at their place one day to clear-cut the entire easement.

The family took exception to the plan, and sued to stop it. While their case was wending its way through the courts ¬– not very satisfactorily to them, because Ohio Edison was winning every step of the way – the Ohio Supreme Court handed down its decision in Corrigan v. Illuminating Co. (which we discussed last Thursday). Corrigan held that vegetation management issues fell within the exclusive jurisdiction of the Public Utilities Commission of Ohio. Common pleas courts had no authority to decide whether tree trimming and removal within easements was prudent or unduly robust.

The Wimmers recognized a break when they saw one, and promptly took a mulligan. Sadly, they fared no better before PUCO than they had in the state court system. That might be because Ohio Edison rolled out the IEEEstandards for vegetation management to an expert witness who had inspected the easement, could identify the individual trees involved, and had facts and figure at her fingertips on the risk each tree posed to the power lines.

There wasn’t any question that the easement permitted Ohio Ed to cut down trees. The only issue was whether it was reasonably necessary. The Wimmers didn’t have any facts to counter the power company’s showing. They didn’t have any compelling legal arguments. All their lawyer could do was pound on the table, and argue that it was speculative that the trees would grow to be a hazard to the power lines.

Well, sure … the expert was only speculating that the trees would grow, and that they would reach the average height for that kind of tree, and for that matter, that there would ever be a high wind or ice storm that would cause them to ensnare the electric lines. Likewise, it’s speculation that the sun will rise in the morning, based on nothing more than a sheer guess based on the fact that it’s done so for the past 1.6 trillion days since the earth was formed. You see where this is going?

Neither PUCO nor the Ohio Supreme Court – which reviewed the agency’s denial of the family’s complaint – was impressed with the Wimmers’ defense. “Who are you going to believe – me, or your own eyes?” their lawyer seemed to argue. The Commission and the Court both answered that question. Actual evidence carried the day.

Pound on the table, indeed.

Wimmer v. PUCO, 131 Ohio St.3d 283, 964 N.E.2d 411 (Sup.Ct. Ohio, 2012). Ohio Edison owned a transmission-line easement running over the Wimmers’ property. For years, Ohio Edison – in accordance with the company’s general policy – trimmed and once in a great while removed trees growing in the easement. But its policy changed after the 2003 Northeastern United States blackout. When the company tried remove all of the trees in the easement, the Wimmers sued to stop it. They went to court, where Ohio Edison won. But before the decision was final, the Ohio Supreme Court ruled in Corrigan v. Illuminating Co. that PUCO, not a court, was required to decide whether removal was reasonable.

The area of North America affected by the 2003 Blackout is marked in red.

The Wimmers then took their complaint to PUCO. After an evidentiary hearing, the commission ruled that Ohio Edison could remove the trees.

The Wimmers appealed.

Held: Ohio Edison was permitted to remove the trees. The Supreme Court held that there was “no question that the company has a valid easement,” that “the tree is within the easement,” and that the easement “grants the company the right to remove any tree within the easement that could pose a threat to the transmission lines.”

The Wimmers nevertheless argued that PUCO’s decision that the circumstances permitted Ohio Edison to remove the trees was not reasonable. They argued that Ohio Edison failed to present evidence that their trees “may interfere with or endanger the utility’s transmission lines.” The Wimmers maintained that the utility’s evidence was “long on Ohio Edison’s fear and speculation and short on hard facts.”

The Court disagreed. It found that evidence presented to the commission showed that “the vegetation in question has the genetic disposition to grow to heights tall enough to potentially interfere with” the power lines, and that Ohio Edison “reasonably determined that this vegetation may interfere or threaten to interfere with the transmission line and should be removed.” The utility had presented an expert witness who had described the trees growing in the right-of-way – which she had personally examined – and explained that their average mature heights were well above the height of the power lines. She had testified that “even with continuous trimming and pruning, at least one tree had already grown to within four feet of the line, in violation of the National Electric Safety Code, which is published by the Institute of Electrical and Electronics Engineers and sets the industry-accepted safety standards. “

The Wimmers didn’t present any contrary evidence or challenge the Ohio Edison witness’s credentials, but rather just complained that her testimony was speculative. In order to overturn PUCO’s determination, the Wimmers had to show that the decision was “so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty.” They did not come close to doing that.

The Ohio Supreme Court did, however, “note with approval the commission’s admonition that Ohio Edison ‘attempt to minimize the impact to property owners, to the extent possible and without sacrificing safety and reliability, when performing [utility-vegetation-management] activities’.” The Court dryly observed that “Ohio Edison must comply with the commission’s order.”

Case of the Day – Tuesday, May 20, 2014

BUILDING A CASE

Trees falling on vehicles never work out well for the vehicle.

A family’s Christmas – and for that matter, its future – was ruined on a rural Ohio one December night. Mike and Traci Reed were driving their two kids home from a Christmas celebration, Traci and her 5-year old son in her car following her husband and their daughter in his, because they had picked up her car at her office, where she had left it earlier. When Mike and daughter Samantha got home, Traci – who had been following them – was no longer behind them. Mike backtracked to find her car crushed by a tree. An EMS worker at the scene told him that his wife was dead and son in critical condition.

The wheels of justice ground slowly after the accident. Four years after the accident, the Ohio Court of Claims – which decides questions of the State’s liability – finally decided the question of the Ohio Department of Transportation’s liability. The case is of interest not just because of the dry reduction of human tragedy into dispassionate allocation of responsibility (although it is interesting for that, too). The findings of fact and conclusions of law handed down by the magistrate (who is kind of an assistant judge) illustrate a well-structured case presented by the plaintiff and a poor rebuttal by ODOT.

One wonders why the State of Ohio didn’t just settle the case if it was going to make such a poor showing. Its own employees made the plaintiff’s case, and its expert pretty much just “phoned it in.” But from the plaintiff’s perspective, the case is a veritable “how to” try a claim of liability against a state agency in a “danger tree” case.

The tree that fell on Traci had shown as “substantial ‘lean’” in the year prior to the accident, and other trees on the same embankment had fallen during that time. Traci’s husband had observed this, but he had never complained to the Ohio Department of Transportation himself. Rather, he assumed that ODOT knew about the condition because road crews maintained the area throughout the years.

The Court noted that ODOT had a general duty to maintain its highways in a reasonably safe condition for the traveling public, but it is not an insurer of the safety of its highways. ODOT may be held liable for damage caused by defects, or dangerous conditions, on state highways where it has notice of the condition, either actual or constructive. Actual notice exists where, from competent evidence, the trier of fact can conclude the pertinent information was personally communicated to, or received by, the party. Constructive notice is that notice which the law regards as sufficient to give notice and is regarded as a substitute for actual notice. Under Ohio law, in order for there to be constructive notice of a nuisance or defect in the highway, that nuisance or defect must have existed for such length of time as to impute knowledge or notice.

The plaintiff (who was the husband of the deceased wife and mother) presented several ODOT employees responsible for vegetation management and hazard abatement along the road in question. He established that some of the employees knew of the tree and believed it to be dangerous, and others – while not recalling the tree ­ – agreed when studying the accident photos that it was dangerous. Plaintiff called a surveyor to establish that the tree had fallen within the state’s right-of-way on the highway, and put people on the stand who had lived close to the accident site, and who testified that they had seen the tree and thought it was a hazard.

Additionally, the plaintiff produced an urban forestry consultant who was certified by the International Society of Arboriculture as an arborist. The forester prepared for his testimony by reviewing court documents, photographs, visiting the accident site, and examining cut-up tree remnants. He testified that that the tree was a 50-year old red oak, and that it contained “reaction wood,” which forms to counter a lean of the tree. He observed that the pith, the biological center of the tree, was off-center, and that the tree’s roots in the embankment showed mild to moderate decay. He concluded that the tree was “hazardous” (as defined by the International Society of Arboriculture Hazard Rating System). His conclusion was based on the tree’s potential to fail and the potential to hit a target, because of its significant lean, its location in a sloped embankment with exposed roots, and the visually obvious deadwood in the crown of the tree. He testified that once a tree is “off vertical” with unstable soil, each progressive year increases the risk of failure. The tree was located on a steep slope, which compromised its stability.

The expert concluded that ODOT failed in its duty to remove a hazardous tree that had several significant defects, readily observable from the roadway. He said it was “not a question of if, but a question of when” the tree would fall on to the highway.

ODOT presented the testimony of one of its employees who said he had removed the tree from the road after it fell, and he had been familiar with it prior to that time. He said he had never seen any condition that concerned him, and if he had, he would have reported it. ODOT also presented its own expert, who prepared his testimony in the same manner as did the plaintiff’s expert. He said that the tree has a “classic natural lean,” due to the fact that the tree was on the edge of the woods and it grew toward the sunlight. According to ODOT’s expert, the center of the tree was asymmetric but there was no indication that the tree was dead or distressed. The State’s expert opined that the tree falling was “natural, it was not predictable.” However, on cross-examination, he conceded that the tree’s center of gravity was “probably not over the roots” and that a tree does not have to be dead, decayed, or diseased in order to be a hazard.

The finder of fact – in this case, a magistrate who heard the evidence for the court ­– found the Reed’s expert to be more persuasive. The evidence about the tree’s shifted center of gravity carried the day; the court concluded that the red oak tree that fell on Traci Reed’s vehicle was a hazard to the motoring public. As for notice, although ODOT said it had received no complaints from either its staff or the public regarding the tree, two of its employees acknowledged that they were aware that the canopy of the tree extended over the roadway. The court found that ODOT had actual knowledge of the hazardous condition, which had existed for more than a year prior to the accident and which was within the State’s right-of-way.

ODOT argued that the property owner where the tree was located was liable for the tree, but ODOT presented no evidence showing that the landowner had actual or constructive notice. As well, it argued that the tree fell due to an act of God. The court rejected that argument. The evidence showed that there was no weather than night that was sufficiently “unusual and overwhelming as to do damage by its own power” to make the falling tree an Act of God. Even if there had been an adverse weather condition on the night of the accident, the Court said, “it has also been the rule of law that, ‘[i]f proper care and diligence [on a defendant’s part] would have avoided the act, it is not excusable as the act of God.'” ODOT’s failure to exercise proper diligence resulted in the tree falling, the Court said, not an act of God.

It sounds like some kind of leafy hero – you know, “look, out in the woods, it’s a fern, it’s a shrub, no, it’s … Danger Tree!!!

Alder, Hemlock and Big Leaf Maple – the “bad boys” of danger trees.

To arborists, a danger tree is no superhero, but rather a menace. In the non-utility context, a danger tree generally has two attributes. First, there’s something wrong with the tree – old age and decay, disease, an injury … something that adversely affects the tree’s structural integrity.

Second, the tree has to be in such a location that its falling or shedding branches is a hazard to people or property. A weakened and decayed tree in the middle of the forest might concern the fauna, but it’s like a shark in the middle of the Pacific – no cause to empty the beaches a thousand miles away.

Today’s case illustrates again – as did yesterday’s tree falling on a car – that good trial preparation trumps purity of purpose. Perhaps proving in the starkest of terms that no good deed goes unpunished, young and sharp-eyed Patrick Connelly spotted a brush fire burning next to the road. Unaware that the fire had been started after a power line was knocked downed by a poplar tree that had fallen in the wind, our hero jumped from his car to stamp out the flames. But sadly (and terminally), what he stomped on was the live power line tangled in the flaming grass.

Death lasts an eternity; litigation only seems to. Mr. Connelly’s estate sued after the 2003 accident. Nearly ten years later, the case was finally over.

Besides the pathos, our interest is in the power utility’s own Transmission & Distribution Guidelines, which defined a “danger tree” from the electric company’s perspective. For a utility, a tree can be structurally unsound to be a “danger tree,” but it doesn’t have to be. Sometimes, just being too close to the wires will be enough. In fact, three trees – the hemlock, the adler and the big leaf maple – pose an existential threat, according to the T&D Guidelines.

But here, the tree in question was not even within the clearance zone under the lines, and by all reports was strong and healthy. Connelly’s executor was unable to convince the court that the utility should be held responsible for what happened beyond its 12’ clearance zone. The power company’s adherence to its own standards, as well as to national guidelines, was its salvation.

That’s the takeaway in most of these cases. Adherence to an accepted standard is enough to show that you’re meet the applicable standard of care.

Connelly v. Snohomish County Public Utility District, Case No. 66714-9-I (Ct.App. Wash. 2012). During a high windstorm, one of the Lombardy poplar trees located on the property owned by a local school district fell approximately 40 feet across a road onto three high-voltage electrical distribution power lines. Two of the power lines shut off, but the third broke off and landed in a ditch on the north side of the road. The energized power line started a small brush fire.

Michael Varnell and Patrick Connelly were driving westbound on the street when they saw the brushfire. Connelly suggested they stop and stomp out the flames. He was electrocuted when he came into contact with the downed power line.

The Connelly Estate filed a wrongful death action against the Public Utility District No. 1, charging that it negligently performed vegetation management and designed and operated the electrical distribution system. But after a trial, the court ruled that the PUD did not have a duty to inspect trees that did not obviously pose a danger, and did not breach its duty of utmost care in the design, operation, or maintenance of the distribution power line system.

The Estate appealed.

Held: The PUD was not liable.

The parties agreed the PUD owed Connelly a duty of the “utmost care.” However, they disputed whether this meant that the PUD had a duty to inspect every tree outside of the 10- to 12-foot power line “clearance zone,” and whether the protection devices the PUD used were sufficient to meet the duty to protect the public and prevent exposure from high-voltage power lines.

Connelly’s expert testified that the standard of care required the PUD to inspect every tree outside the 10- to 12-foot power line clearance zone that was tall enough to fall on a power line. Relying on prior testimony regarding the condition of the poplar tree, the expert also testified that the PUD had a duty to remove the poplar tree located on the School District property. However, on cross-examination, he admitted that he did not know when the tree would have been an imminent danger and that “I, of course, didn’t see the tree and don’t know anything — don’t know much about the trees.” Bollen also admitted the last time he oversaw a vegetation management program was from 1951-56.

A PUD expert examined the tree in 2007 and 2009, and reviewed photos of the fallen tree. He testified the poplar tree that fell showed signs of preexisting rot, decay, and disease. Furthermore, a PUD arborist had inspected the tree within a week of the accident, and found were no external indicators of rot or decay. He said that he would not have identified the tree as a hazard for removal or trimming.

Another PUD expert, Stephen Cieslewicz ­– a certified arborist and a national consultant on vegetation management practices for utility companies –testified that PUD’s vegetation management practices were consistent with industry standards during the period in question. Mr. Cieslewicz testified that the objective of “line clearance inspections is to review the air space between the lines and along the lines for trees or limbs.” PUD periodically inspected the trees within the 10- to 12-foot clearance zone of the power lines, and removed trees or tree limbs that posed a threat to the power lines. As well, PUD also identified “danger trees” outside the clearance zone that pose a threat to the electrical lines. Mr. Cieslewicz said that the vast majority of electrical utility companies do not routinely inspect trees outside the clearance zone simply because the trees are tall enough to fall on the line.

Mr. Cieslewicz also said that absent an obvious danger or notification from a property owner, the PUD had no duty to inspect every tree outside the clearance zone. In fact, such inspection would border on being impossible. He also testified that inspecting every tree outside the clearance zone in Snohomish County was impossible. Cieslewicz also testified that “[t]here likely would not be records” of the inspection of East Sunnyside School Road “if there was no work required.”

A PUD line clearance coordinator testified that he inspected the area several years before the accident. He said that he had looked down the line segment “and saw that the line was clear; that no tree was in the line.” At no time did the School District notify the PUD that any of the poplar trees located in the area posed a hazard. The evidence showed that during the five years before the accident, the poplar trees were healthy.

The trial court found the testimony of the PUD witnesses more credible than the Estate’s experts, neither of whom had inspected the trees. It held that absent obvious signs or notice that a tree posed a danger, the standard of care did not require the PUD to investigate every tree outside the 10- to 12-foot power line clearance zone. The court also concluded the PUD did not breach its duty of utmost care in the design of the electrical power distribution system.

The Court of Appeals held that in order to prevail on a negligence claim, the Estate had to establish duty, breach, causation, and damages. The standard of care for a utility in Washington is daunting: a power company must exercise “the utmost care and prudence consistent with the practical operation of its plant” to prevent injury.

Although the Estate disputed it, the Court of Appeals found that the trial court had correctly applied this “utmost care” standard.In so doing, the trial court did not improperly emphasize the practical operation of the utility; rather, such practical operation is a relevant factor in determining “whether the utility has conducted its operations under the known safety methods and the present state of the art.” The trial court was within its discretion to let PUD present testimony about whether it was practical to inspect trees outside the clearance zone that did not obviously pose a danger.

The Estate challenged a number of the trial court’s factual findings as well, but the Court of Appeals held that there was substantial evidence to support the determinations. That was all the law required. In particular, the appellate court held that “the evidence established the PUD vegetation management met the standard of care, and the PUD was only required to inspect trees outside the clearance zone if there is ‘obvious evidence of decay or rotting or threat to the power line’.”

The Estate also claimed the trial court’s findings were inconsistent with the utility’s own Transmission and Distribution Guidelines. The T&D Guidelines are evidence of the standard of care, but the state statute relied on by Connelly – RCW 64.12.035 – did not require PUD to comply with the T&D Guidelines. Instead, it only provided electric utilities with immunity for cutting or removing vegetation. The statute does not set a standard of care for the utility, and as the PUD points out, no cases have interpreted the statute as creating a duty or setting a standard of care.

PUD’s T&D Guidelines stated that a “danger tree” was

forked trees;

dead or rotten trees;

trees weakened by decay, disease or erosion;

trees visibly leaning toward the power line;

trees or parts of trees which may contact the line under snow, ice or wind loads;

trees originating from fallen decaying logs, old growth stumps or other unstable rooting positions; or

troublesome trees such as alder, big leaf maple and hemlock.

The T&D Guidelines did not impose a duty to inspect every tree that may come in contact with the power lines, but rather just trees within the clearance zone and obvious “danger trees.”

The power company prevailed.

Case of the Day – Thursday, May 22, 2014

HERE, LET ME FIX THAT

Residential developments often have restrictions in deeds, or just merely homeowners’ association rules, prohibiting different colors of house paint, refusing clotheslines and outbuildings, and even banning trees that block a neighbors’ view. And yet people buy houses in the developments, too excited at closing to pay a lot of attention to yet another page of legalese buried in a mountain of legalese. When – several years later – those restrictions get in the way of their whims, the unhappy parties blame everyone but themselves.

That happened to Gail Andrews, who bought a place at beautiful Sandpiper Village in Waldport, Oregon. These places aren’t cheap, but the ocean view makes them quite desirable. Ms. Andrews lived harmoniously with her neighbors for several years, until a nearby homeowner asked her to trim her trees because they were blocking his view of the ocean. Ms. Andrews ignored his request. Not to be denied, the neighbor had the local homeowners association ask her to trim them. She didn’t ignore the homeowners association. Instead, she sued them, and her lawyer found a hook.

The restrictions on trees had been modified in 1993, a few years before she moved in. But then a year later, the association’s lawyer, trying to be helpful, decided to rewrite things a little. He added the phrase “designated ocean view lot” to the restriction, so it read “no trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.” You know, he was just trying to be helpful, to make it a little clearer. Only problem was that there was no such thing as a “designated ocean view lot.” Ms. Andrews glommed onto the new language, claiming she didn’t have to trim her trees because her neighbor’s lot wasn’t a “designated ocean view lot.” In the alternative, she said the whole restriction was void because the homeowners had never passed on the “designated ocean view lot” language.

The Court concluded that the evidence showed that the association’s lawyer never intended his rewrite the change the restriction that the homeowners had approved. Besides, Ms. Andrews had a chance to read all of the rules before she moved in. Her excuse was that some unnamed person who had been attached to the homeowners association had once told her that her neighbor’s place was not a “designated ocean view lot.” Kind of short on corroborative facts, Ms. Andrews, aren’t we? The Court thought so. Without revealing who and when the conversation occurred, Ms. Andrews was unconvincing.

There’s a lesson here for the helpful lawyer. If the restriction was too confusing as it was passed — and there’s no evidence it was — he should have asked the homeowners to vote on the new one. Being a lawyer, he should have foreseen that problems with the restriction wouldn’t arise from good faith confusion as much as bad-faith avoidance, and the non-trimmer would hire a mouthpiece who would try to drive a chainsaw through his “helpful” re-write. And why would anyone use gobbledygook like “designated ocean view lot” when there was no procedure for designating lots in the first place? The lawyer’s helpful “fix” just created a mess and cost his client a lot of money. The unanswered question is whether his client punched him in the kisser and fired him, or just fired him without fisticuffs. It would be a close call.

Andrews v. Sandpiper Villagers, Inc., 170 P.3d 1098 (Or.App., 2007). Sandpiper Villagers, Inc., was the local association of homeowners in Sandpiper Village, a coastal subdivision. When the subdivision was built in 1968, the developer recorded a declaration of covenants and restrictions prohibiting trees, hedges, shrubbery, plantings or fencing over 6 feet tall. The restrictions were to remain in effect for 25 years, during which they could be amended by vote of the lot owners. In 1993, the association adopted an amended declaration providing that no trees, hedges, shrubbery, plantings or fencing of any kind would be allowed to obstruct the ocean view without written approval of the board. The next year, the association’s legal counsel drafted what he termed to be a “stylistic” change to the restriction, one that was not voted on by the homeowners. Following his change, the provision held that no “trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.” Another provision stated “[i]f a provision is subject to more than one reasonable interpretation, any reasonable interpretation adopted by [the board] shall control.”

Andrews bought a lot in Sandpiper Village in 1997, after reviewing the 1994 restrictions as part of her title report. Six years later, another member of the association sent a written notice to Andrews asking her to trim trees on her property in order to preserve his view. She did not. When the ARC asked in writing that she do so, she sued, asking a ruling from the court that the association had no authority to require her to trim the trees because there was no documentation or other evidence showing that her neighbor’s property was a “designated [ocean] view lot.” She also asked that the restrictions be declared void as contrary to state statutes.

The Association moved for summary judgment, arguing that because the phrase “designated ocean view lots” was drafted as a stylistic change and never voted on by the homeowners, it should be disregarded. Without that phrase, the Association argued, the 1994 restrictions had the same effect as the 1993 restrictions. Alternatively, the Association said that, even assuming that phrase is a valid part of the 1994 restrictions, the phrase was ambiguous and the court either should defer to the ARC’s interpretation or determine – based on extrinsic evidence – that it was not intended to effect a substantive change to the 1993 restrictions under which all lots were entitled to view protection. The trial court awarded summary judgment in favor of the Association. Andrews appealed.

Held: The Court of Appeals upheld the judgment for the Association. If a text’s meaning is unambiguous, the Court said, courts decide the meaning of contractual provisions as a matter of law. If disputed contractual provisions are ambiguous, however, courts proceed to examine extrinsic evidence of the contracting parties’ intent, including, if helpful, evidence regarding the parties’ practical construction of an agreement.

Here, the phrase “designated ocean view lots” in the restrictions was unambiguous, referring to those lots that, as a matter of observable fact, had a view of the ocean. Plus, extrinsic evidence supported the Association’s claim that the regulations were unchanged from those approved by the homeowners. The Association’s lawyer’s contemporaneous communications indicated that his revised section of the regulations was intended to have the same substantive effect as section of regulations which, by its terms, did not restrict the protection of ocean views to any particular ocean view lots, such as those that someone had previously “designated” as having an ocean view.

Andrews argued that a prior chairman of the ARC assured her that her neighbor’s lot was not a “designated ocean view lot,” but the Court said that wasn’t a sufficient claim to create a factual dispute about the meaning of the restrictions. Andrews’ affidavit did not state whether the prior chairman was the chairman of the committee at the time she made the statement or, alternatively, at the time that the regulations were adopted.

But that doesn’t mean that our spin on the meme isn’t apt. What’s in your records may be a lot more important than whether you have an American Express Centurion card, a Capital One VISA, or even just a SNAP card in your wallet. They’re probably people who have all three in their wallets, anyway.

All of that brings us to today’s case, where a conspiracy buff ran headlong into a City of Omaha tree-trimming crew. It seems that Ms. Richter didn’t think much of the City trimming her trees. She approached the crew to lodge her protest, only to find no love. In fact, one of the workers told her (in colorful language, perhaps) to step away from the truck. She did so, tripping on a hole in her tree lawn.

A “grassy knoll” fan, Ms. Richter claimed that the hole obviously had been created by the City’s removal of a street sign, which was mysteriously replaced sometime soon after the accident. It didn’t help the case that the City had a habit of destroying work orders on sign replacement several years after the work was done, and so couldn’t completely rebut her claims.

Lucky for Omaha (home to famous steaks), the Nebraska Supreme Court was little impressed by Ms. Richter’s “I-believe-it-so-that-proves-it” approach to the case. It held that the City’s normal-course-of-business document destruction wasn’t the effort to hide the “truth” Ms. Richter so badly wanted to be. Omaha prevailed.

Still, there’s a lesson here for businesses — sometimes, when it comes to document preservation, what’s in your file cabinet had better be more rather than less.

Richter v. City of Omaha, 729 N.W.2d 67, 273 Neb. 281 (Sup.Ct. Neb., 2007). A city work crew was trimming overhanging branches from a tree located in front of Ms. Richter’s home. Ms. Richter walked outside and asked the workers to stop trimming the trees. The workers refused and told her to back away from them and their truck. As Richter backed away, she stepped into a hole with her right foot and fell to the ground, injuring her ankle and twisting her knee.

The Nebraska Supreme Court did not tell Ms. Richter to “chive on.”

The hole in which Ms. Richter fell was located on a grassy area between the street and the sidewalk in front of her residence. Although this section of land is a public right-of-way, Richter was responsible for maintaining the area. She claimed the City had removed a sign some time prior to the accident, thus creating the hole, but replaced it some time thereafter. City records — while nonexistent for periods of time prior to the accident — showed no change in signage at the location during the relevant period.

Not to be detained by the facts, Ms. Richter sued under the Political Subdivisions Tort Claims Act. She alleged that the City was negligent in failing to warn the public of a dangerous condition, failing to provide safe passage of a right-of-way, and failing to exercise due care in the operation of its business. The trial court found in favor of the City, holding that the evidence was insufficient as to how the hole came to be, when it came to be a hole, and whether the City knew of this hole prior to Ms. Richter’s injury. There was insufficient evidence that the City caused the hole or that it knew it was there so it could be repaired in a timely manner.

Richter appealed.

Held: The City was not liable.

Ms. Richter said the evidence was “spoliated,” not “spoiled.” Either way, the Court said her argument stank.

Ms. Richter argued that Omaha had destroyed old work orders from years prior to the accident, and this conduct indicated fraud and a desire to suppress the truth. The Court disagreed, holding that she was not entitled to the adverse inference allowed under the rule of spoliation because the record indicated that the work orders were destroyed in the ordinary course of the city’s business. The Court said that the intentional spoliation or destruction of evidence relevant to a case raises a presumption, or, more properly, an inference, that this evidence would have been unfavorable to the case of the spoliator; however, such a presumption or inference arises only where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent. In order to be successful on her negligence claim Ms. Richter had to establish, among other things, that the city created the condition, knew of the condition, or by the exercise of reasonable care should have discovered or known of the condition. Other than her belief that this was so, she had no evidence to support her contention.

So you like your wild mountain property, with its clean, sparkling streams and majestic trees? You like to think that it will always look as pristine and undeveloped as it does right now. So when you finally sell it, you place some restrictions on the deed, so that there won’t be any double-wide trailers, pre-fab A-frame chalets or tar paper shanties. Seems reasonable, doesn’t it? But eventually the people you sold the land to sell it to someone else, and the someone else has a really good lawyer. “This is Connecticut!” the solicitor tells his client. “We can beat this restriction!”

And lo and behold, that’s just what he does. It seems in Connecticut, the terms on which you were originally willing to sell your land don’t much matter. In today’s case, the heirs of the original nature-lovin’ owner suffered a lot of angst when they finally sold off most of the lake property. But the buyer won them over, even agreeing to a development restriction on part of the land, in order to preserve its natural character. A few years later, that buyer sold the land to the Williams, who had been convinced by their lawyer that the restriction wasn’t enforceable. The new owners promptly sued for a declaratory judgment that the restriction was void.

The Connecticut court agreed that it was. It fell outside of the three traditional categories of restrictions that ran with the land. Even so, the Court said, it could be enforced under equitable principles. But it wouldn’t do that, the Court said, because it would be so unfair to the buyers of the land. After all, the Court said, it wasn’t clear who the beneficiary of the restriction was or who could enforce it. Therefore, the Court held it would be unfair to the buyers because — and we’re not making this up — they “bought the property because they thought the restriction was unenforceable. If the restriction is found enforceable, the property could only be developed for recreational purposes and would be far less valuable. Devaluing property without a clear beneficiary is not reasonable.”

The decision certainly turns common sense on its head. Where a seller is unwilling to sell unless a restriction is placed on the land, it’s hard to argue that the continuing restriction harms marketability. It’s more marketable than if the seller doesn’t sell at all. And for that matter, should it even be the law’s business to promote marketability over a seller’s free will?

It seems safe to imagine that as conservation — and especially forest preservation because of “climate change” concerns — is of increased public policy importance, the notion of “marketability” and the free right to develop may become less of a holy grail. As it probably should.

Williams v. Almquist, 2007 WL 3380299 (Conn. Super., Oct. 30, 2007) (unreported). Robert Bonynge bought a 150-acre tract of land at Lake Waramaug in 1898, which he later conveyed away in several parcels. Although some of the original tract was sold in the 1930s, and some of the heirs owned certain parcels outright, a 105-acre tract was eventually sold to Lee and Cynthia Vance by the Bonynge heirs in 2001. The negotiations for that sale were a difficult and emotional process, with the primary concern of the heirs to conserve the natural condition of the property. The Vances agreed to give some of the land and a conservation easement to the Weantinoge Heritage Land Trust. Also, they agreed a restriction on 8.9 acres of the property: “There shall be no construction or placing of any residential or commercial buildings upon this property provided that non-residential structures of less than 400 square feet may be constructed for recreational or other non-residential purposes and further provided that the property may be used for passive activities such as the installation of septic and water installations, the construction of tennis courts, swimming pools and the construction of facilities for other recreational uses.”

The sellers were disinclined to see their paradise turned into a trailer park. What irrationality! Fortunately, the law protects us from the foolish notions of a seller …

David and Kelly Williams bought part of the 8.9-acre tract in 2005 from the Vances, still still subject to the restriction agreed upon in February 2002. Shortly thereafter, the Williams entered into an agreement with the Vances in which the Vances waived their right to enforce the restriction. The Williams then sued for declaratory judgment against the Bonynge heirs, asking the court to declare the restriction in their deed void and unenforceable.

Held: The restriction on the Williams’ land was held to be unenforceable. The Court noted that restrictive covenants generally fall into one of three categories: (1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee presumptively or actually for his benefit and protection of his adjoining land which he retains. Here, the restrictive covenant did not fall under the first category because it originally arose from the sale of the Bonynge heirs’ land to the Vances, not from an exchange of covenants between adjoining landowners. Likewise, the second category did not apply. Rather, that category applies under a general developmental scheme, where the owner of property divides it into building lots to be sold by deeds containing substantially uniform restrictions, any grantee may enforce the restrictions against any other grantee. But in this case, the Court ruled, the evidence suggested that a common plan or scheme did not exist.

The restrictive covenant did not fall under the third category either. Where the owner of two adjacent parcels conveys one with a restrictive covenant and retains the other, whether the grantor’s successor in title can enforce, or release, the covenant depends on whether the covenant was made for the benefit of the land retained by the grantor in the deed containing the covenant, and the answer to that question is to be sought in the intention of the parties to the covenant expressed therein, read in light of the circumstances attending the transaction and the object of the grant. The question of intent is determined pursuant to the broader principle that a right to enforce a restriction of this kind will not be inferred to be personal when it can fairly be construed to be appurtenant to the land, and that it will generally be construed to have been intended for the benefit of the land, since in most cases it could obviously have no other purpose, the benefit to the grantor being usually a benefit to him as owner of the land, and that, if the adjoining land retained by the grantor is benefitted by the restriction, it will be presumed that it was so intended. Here, three of the Bonynge heirs retained property near the 105-acre tract, but did not own property directly adjoining or overlooking the restricted tract. As such, the Court said, there was no presumption that the restriction was meant to benefit their land. The deed didn’t say as much: in fact, the deed didn’t indicate that the restriction was meant to benefit anyone at all. With no mention of beneficiaries in the deed and no testimony regarding the intent of the retaining landowners, the Court held, the restriction could not fall under the third category.

The trial court said it could properly consider equitable principles in rendering its judgment, consistent with Connecticut’s position favoring liberal construction of the declaratory judgment statute in order to effectuate its sound social purpose.

Some might argue that maintaining the forest as a carbon sink was a worthwhile social purpose

Although courts before have approved restrictive covenants where they benefited a discernable third party, the Court here found that the restriction was not reasonable because it had no clear beneficiary and limited the marketability of the property. The possible beneficiaries were the Bonynge heirs, only those heirs who retained property in the Lake Waramaug area, the other residents in the Lake Waramaug area, the Vances, or simply nature itself. Without a discernable beneficiary, the Court ruled, it was difficult to determine who could enforce the restriction and for how long.

The restriction also unreasonably limited the marketability of the property. Although restrictions are often disfavored by the law and limited in their implication, restrictive covenants arose in equity as a means to protect the value of property. Here, no identifiable property was being protected by the restriction. The plaintiffs bought the property because they thought the restriction was unenforceable. If the restriction is found enforceable, the property could only be developed for recreational purposes and would be far less valuable. Devaluing property without a clear beneficiary, the Court said, was not reasonable.

Case of the Day – Wednesday, May 28, 2014

ALL FOR ONE AND ONE FOR ALL

Family reunions at the Halcumb homestead must have been rather awkward after sister Patsy sued her brother Ken for a hundred grand in cut timber.

Ken lived on land pursuant to a life estate, with Patsy holding the reversionary interest. Ken and his buddy Troy Denton decided to harvest the timber and sell it, thereby committing waste on the property. Sister Patsy sued brother Ken and collected $32,000. Only half a loaf, it turns out – Patsy had demanded treble damages under Arkansas’ wrongful cutting law – a statute similar to one in many states, which punishes wrongful taking of timber by tripling the damages to be paid by the wrongdoer. The trial court had denied treble damages, much to Patsy’s dismay.

She didn’t bother to appeal. Instead, right after Ken paid her off, she turned around and sued Troy, asking for the treble damages.

Remember your mother warning you, “Don’t make me repeat myself?” RememberGeorge Santayana? Courts don’t like to repeat themselves, either. When a court has spoken definitively on an issue, that judgment binds those parties who had a fair chance to litigate it. This, in its various flavors, is res judicata (where the claim cannot be relitigated) or collateral estoppal (where only one or more points cannot be relitigated). Either is a defense to be raised against a claim.

Troy did just that, asking the trial court to dismiss the claim under the doctrine of res judicata, literally meaning “the thing has been adjudicated.” Patsy tried the novel argument that because her brother had the right to get contribution from Denton for the money he had to cough up to big Sis, she had the right to sue him as well. After all, Troy was a joint tortfeasor.

But that begged the question. If her brother wasn’t liable for the treble damages, his partner-in-tort hardly could be. And that was the problem. Patsy had had a fair shot at the tree harvesters in the first trial. The law guarantees everyone that one fair shot, but not two. Where the second case is based on the same events as the first, the Court said, it is precluded by issue preclusion, the concept that encompasses collateral estoppel, res judicata, and claims preclusion.

That just makes good sense — both from the standpoint of judicial economy and everyone’s interest in seeing litigation have some reasonable and final endpoint.

White v. Denton, Not Reported in S.W.3d, 2007 WL 4181557 (Ark.App., Nov. 28, 2007). Patsy White owned timberland in Polk County, subject to a life estate in the property held by her brother, Ken Halcumb. In the summer of 2004, Halcumb contracted with Denton to cut and remove timber from the property. White sued her brother for conversion of the timber and for damage to the property, alleging the land sustained damage in excess of $100,000 plus more than $25,000 in cleanup and replanting costs. She asked for treble damages for the value of the converted timber.

White won a $31,202.80 judgment in 2005. In that judgment, the trial court denied White’s prayer for treble damages, finding that Arkansas law on treble damages for wrongful cutting of timber did not apply. The Court also refused to award damages for clean up or replanting of the timber. She did not appeal, and her brother paid. A month later, she sued Denton for trespass and conversion of her timber, again asking for treble damages. Denton asked for summary judgment, asserting that White’s complaint was barred by the doctrine of res judicata, having been by the judgment she got against her brother. The trial court agreed and dismissed White’s complaint. While appealed.

Held: Denton is off the hook. White argued that the recovery of a judgment against one joint tortfeasor did not discharge the other joint tortfeasor. She said that Denton acted “jointly” with her brother to commit the torts of trespass and conversion of her timber, but contended that Denton is “independently liable” for those acts. She argued that her cause of action against Denton is not barred by res judicata because she hadn’t had a full opportunity to pursue Denton as a joint tortfeasor. She acknowledged that she received in damages the same amount of money that Halcumb sought to collect from the timber, but she contended that the judgment did not include the remaining damages that she claimed.

The Three Musketeers – “All for one and one for all?” Or joint tortfeasors?

The Court said that the term “res judicata” encompassed both issue and claim-preclusion. When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. While state law established a common policy for loss distribution among joint tortfeasors, it didn’t give a plaintiff the right to sue each of multiple tortfeasors individually for the same damages. The Court noted that White recovered a judgment for the very claims that she subsequently attempted to assert against Denton. If she was unsatisfied with the amount of the judgment, the Court said, her remedy was appeal, not a new suit against someone she could have included in the first action.

Here, the Court held, White’s suit against Denton arose from the same wrongful cutting of her timber and the damages that she sought were identical. While Patsy arguably asserted a somewhat different legal theory – negligence – as a basis for imposing liability against Denton, however, that fact made no difference.

It always seemed a little ironic that English common law needed an entire branch of jurisprudence known as “equity.” Oliver Wendell Holmes, Jr., famously lectured a litigant once that his courtroom was “a court of law, young man, not a court of justice.” It was precisely because there was so much law and so little justice that medieval England developed a parallel judicial system known as courts of equity, where litigants could get just results that were precluded in the courts of law by hidebound rules of pleading and damages.

The basis of equity is contained in the maxim “Equity will not suffer an injustice.” Other maxims present reasons for not granting equitable relief. Laches is one such defense.

Laches is based on the legal maxim “Equity aids the vigilant, not those who slumber on their rights.” In other words, “you snooze, you lose.” Laches recognizes that a party to an action can lose evidence, witnesses, and a fair chance to defend himself or herself after the passage of time from the date the wrong was committed. If the defendant can show disadvantages because for a long time he or she relied on the fact that no lawsuit would be started, then the case should be dismissed in the interests of justice.

Ms. Garcia suffered encroachment from a copse of boundary-tree elms for a long time, perhaps too long a time, without doing anything about it. She could have trimmed roots and branches that intruded into her alfalfa fields years before – New Mexico law let her do that – but she fretted and stewed in silence. When she finally wanted to take action, the elms were so big that the trunks themselves had crossed the property line. Her “self-help” would have killed the trees. The lesson? As the old TV box announcer used to adjure, “You must act now.”

Garcia v. Sanchez, 108 N.M. 388, 772 P.2d 1311 (Ct.App. N.M. 1989). This dispute between neighboring landowners involves trees originally planted on defendant’s property which have overgrown and now encroach upon plaintiff’s property. By the time Garcia bought her land in 1974, ten elm trees planted some years before near the common property line were well established. Although originally planted inside defendant’s property line, over the years the trees had reached full size, and had grown so that nine of them were directly on the boundary, with the trunks encroaching onto plaintiff’s property from one to fourteen inches.

Garcia used her land for growing field crops. Sanchez’s side had a driveway and residence. Garcia didn’t complain about the trees until 8 years after buying her property. Two years after her first complaint, she sued.

The trial court found Garcia’s actions in providing water and nutrients to her crops had caused the trees to grow toward her property, but it concluded that Sanchez negligently maintained the elm trees, allowing the roots and branches to damage the crops on Garcia’s property. The court also found that she has not suffered enough damage to warrant the removal of the trees, and that cutting any substantial portion of the trunks of the trees would seriously harm them. The court found that yearly trenching of the roots and trimming of branches on Garcia’s side of the property line would essentially resolve any problems resulting from the encroachment of tree roots and overhanging branches on her property, so it ordered Sanchez to pay $420.80 for damage to Garcia’s alfalfa, to yearly trench the roots and trim the branches of the trees, and to provide water and nutrients to the trees in order to restrict their growth toward plaintiff’s property.

The parties appealed.

Elms make good boundary trees

Held: The Court of Appeals reversed and remanded. It held that the trees originally planted inside a property line, which had grown to encroach onto adjoining property along boundary, were not jointly owned under the common boundary line test absent an oral or written agreement to have the trees form boundary line between the parties’ property. It agreed that the trial court’s refusal to order that Sanchez remove the encroaching trees was not an abuse of discretion, observing that the trial court had tried to balance equities by weighing the value of trees against the agricultural character of property involved and nature of harm suffered by Garcia.

But the Court of Appeals went further: it ruled that the harm caused to Garcia’s crops by the elms’ overhanging branches and tree roots is not actionable. Instead, followingAbbinett v. Fox, the Court held that a plaintiff’s remedies are normally limited to self-help to protect against the encroaching branches and roots. But here, Garcia waited too long: her plan now, after years of suffering in silence, to remove a substantial portion of the root system or trunk of the encroaching trees (the Massachusetts Rule right) may endanger lives or injure Sanchez’s property, and that laches gives a court the right to limit the exercise of her self-help plan under its equitable authority.

Case of the Day – Friday, May 30, 2014

JUDGE JUDY HAS HER LIMITS, YOU KNOW

Ah, Cleveland! Renown for the Rock and Roll Hall of Fame, world leader in the manufacture of duct tape, home to some really good beer and some really bad teams … not to mention Johnny Football …

Cleveland’s gift to the world.

Add to that impressive string of achievements one more jewel: Cleveland gave the United States its first small claims court in 1913. The People’s Court was not far behind.

Small claims courts exist in every state of the country, informal courts of very limited jurisdiction (awards of a few hundreds or few thousands of dollars), places where lawyers and formality are rare indeed. It was to just such a place that Mr. Iny dragged Mr. Collom. It seems the roots of Mr. Collom’s tree were breaking up the walls of his neighbor’s garage. Now, any fan of the Massachusetts Rule would have told the neighbor to get out there with a shovel and ax, and cut the offending roots at the property line. Self-help is, after all, as American as … well, as theMassachusetts Rule.

Of course, self-help doesn’t mean you can go onto your neighbor’s property, and it seems the homes and garages in this Long Island town were packed together like sardines. Mr. Iny couldn’t dig up the attacking roots without going onto Mr. Collom’s place, and we’re suspecting from the decision that these two guys were not the best of friends. So Mr. Iny took him to court. The small claims court awarded him $2,100 for damages. Being of limited jurisdiction, the court couldn’t order Mr. Collom to cut down the tree or dig up the roots, so money was all that was available. Mr. Collom appealed (something you never see happening on TV).

Great Lakes’ American pale ale, named for that embarrassing episode in 1969 when the Cuyahoga River burned – not for the first time – and ended up as an icon for the nascent environmental movement. Incidentally, the river’s quite clean these days, and the brew’s a pretty fine pale ale.

The Supreme Court (which in New York State is not the state’s high court, but rather in this case just a court of appeals) reversed. The remedy here, the court said, shouldn’t have been money. It should have been to cut down the tree. But the small claims court lacked jurisdiction to do that. The Supreme Court itself didn’t have such constraints, so it reversed the money damages and instead ordered Mr. Collom to get rid of the tree.

The most interesting part of the decision is the lengthy and well-written dissent arguing that Mr. Iny’s tree claim was in fact a nuisance claim, and that money damages should have been awarded as well. The dissenting judge argued that New York has adopted its own tree encroachment rule, a hybrid of theMassachusetts RuleandVirginia Rule(which itself has since this case been abandoned by Virginia). In New York, the judge concluded, a complainant has to resort to self-help first. If that fails, the courts will intervene if the tree can be shown to be a nuisance — that is, if the tree “is causing substantial interference with the use and enjoyment of plaintiff’s land, that defendant’s conduct is intentional or negligent.”

Of course, the discussion is found in a dissent to a fairly low-level, unreported decision, but it’s a thoughtful analysis of the encroachment rule in a state where precedent on the subject is sparse. Good reading on cold winter night … unless, of course, another episode of Judge Judy is on.

Iny v. Collom, 827 N.Y.S.2d 416, 13 Misc.3d 75 (Sup.Ct. N.Y., 2006). The roots of a tree situated on defendant’s property damaged the wall of a garage on plaintiff’s property. Plaintiff lacked the room to cut the roots out himself without trespassing on his neighbor’s land. He sought to get his neighbor to remove the objectionable tree, which he felt would have been the best way to fix the problem, but the defendant refused. Plaintiff sued in small claims to recover $2,100. The trial court awarded him this sum. Defendant appealed.

Held: The decision was reversed. The Supreme Court noted that a New York small claims court is a court of limited jurisdiction and lacks the authority to grant any equitable remedy, such as directing the removal of a tree. Under the circumstances presented, the Court ruled, “substantial justice would have been most completely rendered had the court awarded judgment in favor of defendant dismissing the action on condition that he remove the subject tree within a specified period of time”. But the trial court couldn’t do that. The Supreme Court could, however, and ordered the case dismissed, conditioned on defendant removing the tree within 60 days.

One justice dissented. He believed that the trial court’s judgment awarding plaintiff $2,100 in damages was based on a nuisance claim, and should have been affirmed. The dissent said the issue faced in the case was whether under New York law, a property owner whose property is being encroached upon and damaged by the roots of a neighboring property owner’s tree may successfully assert a cause of action sounding in private nuisance if the property owner’s resort to self-help is unworkable, and the property owner’s attempts at obtaining assistance from the neighboring property owner to abate the roots’ encroachment have been unsuccessful.

The dissent argued that to establish a cause of action for private nuisance, the plaintiff must show that the defendant’s conduct causes substantial interference with the use and enjoyment of plaintiff’s land and that defendant’s conduct is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the laws governing liability for abnormally dangerous conditions or activities. The interference can be caused by an individual’s actions or failure to act. Where a defendant has been put on notice that his activity is interfering with plaintiff’s use and enjoyment of his land and defendant fails to remedy the situation, the defendant ought to be found to have acted intentionally and unreasonably.

Remember – the dissent is the only the opinion of the losers, amusing but inconsequential.

Furthermore, the dissent argued, “[u]nder New York law, a party is liable for failing to abate a nuisance [under a theory of negligence] upon learning of it and having a reasonable opportunity to abate it.” The question of whether there has been a substantial interference with plaintiff’s use and enjoyment of his/her property is one to be resolved by the trier of fact and involves a review of the totality of the circumstances based upon a balancing of the rights of the defendant to use his or her property against the rights of the plaintiff to enjoy his or her property. The balancing amounts to a risk-utility analysis weighing the social value of the conduct involved against the harm to private interests.

The dissent admitted that while the elements of a nuisance action appear straightforward, in New York there is a paucity of case law addressing nuisances arising from trees or other plant life. Nevertheless, the justice argued, there is substantial case law from jurisdictions outside New York, and he describes in detail theMassachusetts Rule, theVirginia Ruleand theHawaii Rule. The dissent concludes New York has “in large measure, adopted a hybrid approach somewhere between the Hawaii and Virginia Rules in determining the issue of nuisance liability. To sustain a cause of action for nuisance, a plaintiff must resort to self-help in the first instance, which does not appear to be a prerequisite under the Hawaii Rule. Once a plaintiff establishes that self-help failed or self-help was impracticable, he or she must (1) showsensibledamage (this kind of “sensible” has nothing to do with common sense, but rather is an injury that can be perceived by the senses), (2) that defendant’s conduct is causing substantial interference with the use and enjoyment of plaintiff’s land, (3) that defendant’s conduct is intentional or negligent, and (4) that the continued interference with the use and enjoyment of plaintiff’s property is unreasonable.

Where a defendant has been notified that a tree was causing damage to plaintiff’s property and refuses to assist plaintiff in taking measures designed to abate the nuisance, the defendant should be found to have acted intentionally or negligently with regard to the nuisance. The unreasonableness of the interference will depend upon an overall balancing of the equities: the injuries to plaintiff and to defendant, the character of the neighborhood, the ongoing nature of the injury, and the nature of defendant’s actions.

Remember, the foregoing – while it may be eminently “sensible” in the meaning of the term – was the opinion of a lone judge, one who was outvoted. It makes for thoughtful reading. But don’t mistake it for the law.